v.l,  c.J, 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


SELECT   ESSAYS    IN 
ANGLO-AMERICAN  LEGAL  HISTORY 

VOLUME  ONE 


SELECT   ESSAYS 

IN 

ANGLO-AMERICAN  LEGAL 
HISTORY 

BY  VARIOUS   AUTHORS 


COMPILED    AND    EDITED    BY    A    COMMITTEE    OF   THE 

ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


IN  THREE  VOLUMES 
VOLUME  I 


BOSTON 

UTTLE,   BEOWN,   AND   COMPANY 
1907 


Copyright,  1907, 
BT  LITTLE,  BROWN,  AND  COMPANY. 


All  rights  reserved 
Published  August,  1907 


COLONIAL   PRESS 

EUctrotyfitd  and  Printed  by  C.  H.  Sitnondt  &•  Co. 
Botton,  U.S.A. 


PREFACE 


DE  QUINCEY,  in  one  of  his  Letters  to  a  Young  Man 
whose  Education  has  been  Neglected,  quotes  Dr.  John- 
son's pronouncement  upon  French  literature  (and  it  was 
the  kindest  thing  he  had  to  say  about  it),  that  "he  valued 
it  chiefly  for  this  reason:  that  it  had  a  book  upon  every 
subject."  Even  so  much  as  this  could  hardly  be  claimed  for 
our  own  literature  in  English.  To  this  day  it  has  no  com- 
plete book  upon  the  history  of  its  own  law.  The  attempts  of 
Blackstone,  Crabb,  and  Reeves  are  of  a  past  epoch.  The 
progress  of  a  century  of  historical  thought  has  fixed  a  great 
gulf  between  us  and  them.  To-day,  this  branch  of  our  lit- 
erature dates  virtually  from  Mr.  Justice  Holmes'  "  The 
Common  Law  "  and  Sir  Frederick  Pollock's  and  Professor 
Maitland's  "History"  —  the  first  writers  in  this  field  (as 
Hallam  says  of  Montaigne  among  French  classical  writers) 
"  whom  a  gentleman  is  ashamed  not  to  have  read." 

The  present  state  of  our  knowledge  of  the  history  of  our 
law  may  be  likened  to  an  unfinished  building,  whose  founda- 
tions have  been  laid  and  whose  frame  and  beams  have  been 
erected.  The  roof,  the  walls,  the  floors,  the  furnishings  and 
decoration,  are  yet  lacking.  Its  scope  and  internal  plan,  its 
architecture  and  its  relation  of  parts,  can  be  already  plainly 
seen.  But  it  cannot  yet  be  inhabited;  and  many  kinds  of 
workmen  must  labor  longer  upon  it.  These  foundations 
are  the  volumes  of  Sir  Frederick  Pollock  and  Professor  Mait- 
land,  —  resting  upon  the  still  deeper  Germanic  caissons  of 
Professor  Heinrich  Brunner  and  his  co-workers.  This  frame 
and  these  cross-beams  are,  on  the  one  hand,  the  few  larger 
monographs,  from  Mr.  Justice  Holmes'  "  The  Common 
Law  "  and  Professor  Bigelow's  "  Anglo-Norman  Procedure," 

v 

6501G9 

EAW 


vi  PREFACE 

of  thirty  years  ago,  to  the  Selden  Society's  source-books  and 
Mr.  Holdsworth's  recent  first  volume;  and,  on  the  other 
hand,  the  more* numerous  essays  and  chapters  of  the  authors 
represented  in  these  present  volumes.  But,  until  now,  most 
of  these  lesser  structural  members  of  the  framework  have 
lain  scattered  about  upon  the  ground,  here  and  there,— 
ready  for  use,  and  yet  not  fully  serviceable  because  not  easily 
accessible  and  not  assembled  in  their  relations  to  each  other 
and  to  the  whole.  It  is  the  purpose  of  these  volumes  to 
assemble  and  make  accessible  these  valuable  parts  of  the 
structure  of  our  legal  history. 

The  season  is  ripe  for  this  work.  It  is  probable  that  an- 
other generation  will  pass  before  the  final  elaboration  of  the 
structure  can  be  attempted.  Until  the  Year  Books  are  en- 
tirely re-edited  and  printed,  most  of  the  work  will  be  of  a 
limited  and  topical  scope.  It  is  now  time  for  our  profession 
to  take  account  of  past  progress,  —  to  put  together  and  to 
possess  in  mastery  that  which  has  been  so  far  achieved ;  fol- 
lowing the  dictate  of  Goethe :  "  My  maxim  in  the  study  of 
Nature  is  this :  Hold  fast  what  is  certain,  and  keep  a  watch 
on  what  is  uncertain." 

The  times  demand,  too,  of  our  profession,  more  cultivation 
of  the  taste  for  history.  A  counter-balance  against  the  hasty 
pressure  for  reform,  and  against  an  over-absorption  in  the 
narrow  experience  of  the  present,  is  to  be  sought  in  the  solid 
influence  of  history.  A  true  conservatism,  and  an  intelligent 
progress,  must  alike  be  based  on  historical  knowledge,  —  a 
knowledge  not  remaining  in  the  possession  of  a  few  scholars, 
but  penetrating  abroad  into  the  general  consciousness  of  the 
profession. 

For  student  and  for  practitioner  alike,  we  believe  that 
these  historical  essays  will  be  a  welcome  enlargement  of  the 
horizon  of  our  law.  "  It  is  the  historians  who  are  my  true 
men,"  says  the  genial  Montaigne,  "  for  they  are  pleasant  and 
easy;  wherein  immediately  man  in  general  (the  knowledge 
of  whom  I  hunt  after)  appears  more  lively  and  entire  than 
anywhere  besides."  And  his  ingenuous  reason  for  best  liking 
Plutarch  and  Seneca  is  a  reason  which  (we  confess)  has 
seemed  to  us  likely  to  commend  these  present  composite  vol- 


PREFACE  vii 

umes  to  that  class  of  our  expected  readers  who  are  already 
immersed  in  practice;  for  those  ancient  writers,  he  says, 
"  have  this  great  convenience  (suited  to  my  humour)  that 
the  knowledge  I  there  seek  is  discoursed  in  several  pieces,  not 
requiring  any  great  trouble  of  reading  long,  of  which  I  am 
incapable ;  'tis  no  great  undertaking  to  take  one  of  them  in 
hand,  and  I  give  over  to  them  at  pleasure,  for  they  have  no 
necessary  chain  or  dependence  upon  one  another." 

To  the  profession,  then,  and  to  all  its  members,  whether 
in  school  or  out  of  it,  we  commend  this  Collection,  in  the  hope 
that  it  may  bring  into  general  knowledge  the  main  part  of 
the  historical  achievements  which  are  not  yet  contained  in 
independent  volumes,  and  that  it  may  help  to  stimulate  a 
deeper  and  wider  knowledge  of  the  present  meaning  of  our 
law  as  seen  in  the  light  of  its  past.  Sooner  or  later  the 
number  of  those  who  themselves  take  an  efficient  part  in 
historical  legal  research  will  have  to  be,  and  will  be,  much 
increased.  But  that  day  will  the  sooner  come  to  pass  if 
meantime  the  number  of  those  can  be  increased  who  will  read 
and  appreciate  what  has  already  been  done,  and  will  thus 
give  support  and  encouragement  for  such  research.  Science 
expands  with  culture,  and,  in  Matthew  Arnold's  phrase, 
"  Culture  is  'reading,  —  but  reading  with  a  purpose  to  guide 
it,  and  with  system.  He  does  a  good  work  who  does  anything 
to  help  this ;  indeed,  it  is  the  one  essential  service  now  to  be 
rendered  to  education." 

In  giving  account  of  our  labors  in  the  preparation  of  this 
Collection,  it  is  our  first  duty,  on  behalf  of  our  profession, 
to  thank  those  authors  and  publishers  who  have  so  freely 
allowed  the  reprinting  of  these  essays  and  chapters.  From 
the  leaders  of  the  historical  vanguard  (so  to  speak) — of 
whom  Professor  Brunner  of  Berlin,  the  lamented  Professor 
Maitland  of  Cambridge,  Sir  F.  Pollock  of  Oxford,  Mr.  Jus- 
tice Holmes  of  Washington,  Professor  Ames  of  Harvard, 
and  Professor  Bigelow  of  Boston,  are  representative  —  this 
consent  has  been  especially  welcome. 

We  must,  secondly,  express  our  regret  that  the  limitations 
of  scope  and  space  have  forced  the  omission  of  many  essays 


viii  PREFACE 

which  merited  reprinting.  All  matters  of  public  law,  for 
example  —  including  the  history  of  constitutional  law  and  of 
municipal  corporations  —  have  been  left  aside ;  perhaps  a 
later  series  may  be  made  to  include  them.  Furthermore,  in 
several  essays  and  monographs,  the  narrow  range  of  details, 
the  lengthy  marshalling  of  the  historical  evidence,  or  the 
impossibility  of  separating  usable  parts,  has  made  them 
ineligible;  though  a  reference-list  of  such  authorities  has 
been  appended  in  the  proper  places. 

A  main  motive  for  the  Collection  was  to  rescue,  from 
scattered  series  of  periodicals  or  general  treatises  on  present 
law,  and  to  assemble  in  one  convenient  form,  those  essays  or 
chapters  which  are  of  permanent  value  and  would  otherwise 
fail  of  the  constant  and  wide  perusal  which  they  deserve. 
Hence  the  plan  did  not  propose  to  include  any  extracts  from 
works  devoted  entirely  and  professedly  to  the  history  of  any 
part  of  the  law,  —  such  acknowledged  masterpieces,  for 
example,  as  Sir  F.  Pollock's  and  Professor  Maitland's  His- 
tory of  English  .Law,  or  Mr.  Digby's  History  of  the  Law  of 
Real  Property,  or  Mr.  Justice  Holmes'  The  Common  Law. 
But,  in  several  instances,  exceptions  to  this  plan  were  allowed. 
The  impelling  reason  was  the  Committee's  desire  to  give  a 
certain  symmetry  to  some .  topics  and  periods  which  would 
otherwise  have  been  imperfectly  represented.  The  present 
volumes  may  therefore,  it  is  hoped,  serve  to  illumine  in  out- 
line the  legal  history  of  the  last  six  centuries,  and  thus  to 
supplement  the  great  treatise  of  .Sir  F.  Pollock  and  Profes- 
sor Maitland,  —  at  least  provisionally  and  until  by  the  com- 
pletion of  the  larger  undertakings  of  Mr.  Holdsworth  and 
others  the  same  period  shall  have  been  more  adequately  cov- 
ered. 

A  more  detailed  explanation  of  the  Committee's  prepara- 
tory labors,  and  of  the  motives  leading  to  its  appointment, 
will  be  found  in  the  Proceedings  of  the  Association  of  Amer- 
ican Law  Schools  for  1905  and  1906,  published  with  the 
Proceedings  of  the  American  Bar  Association  for  those 
years. 

All  of  the  material  here  collected  has  been  already  pub- 
lished elsewhere  as  essays,  articles,  or  chapters,  —  with  the 


PREFACE  ix 

exception  of  Mr.  Zane's  studies  of  the  Bench  and  Bar  of 
England,  which  are  now  printed  for  the  first  time. 

The  bibliographical  footnotes  for  each  of  the  authors 
were  in  some  instances  furnished  by  the  authors  themselves, 
pursuant  to  the  Committee's  request.  In  other  instances, 
owing  to  the  authors'  modest  ignoring  of  that  request,  the 
Committee  used  such  notes  as  could  be  found  in  biograph- 
ical dictionaries ;  and  in  still  others,  no  information  was 
obtainable.  The  brief  extra  reference-lists,  prefixed  to  the 
topical  divisions  of  this  Collection,  include  only  those  articles 
(the  result  of  the  Committee's  preliminary  gleanings)  which 
it  was  impossible  to  include  in  the  reprint.  These  lists  are 
found  chiefly  under  the  special  topics  of  volumes  II  and  III. 
Following  the  prevailing  American  custom,  no  attempt  has 
been  made  to  designate  the  authors,  in  the  title-heading  of 
these  essays,  by  their  academic  degrees  or  similar  marks  of 
distinction ;  but  in  a  footnote  is  placed  a  record  of  such  dis- 
tinctions, so  far  as  information  was  obtainable. 

With  these  explanations,  and  with  apologies  for  such 
errors  as  must  inevitably  have  accompanied  the  work  of  a 
Committee  cooperating  from  three  separate  headquarters, 
and  corresponding  with  authors  and  publishers  widely 
sundered  by  sea  and  land,  the  volumes  are  committed  to  the 
good-will  of  the  profession. 

THE  COMMITTEE  OF  THE 

ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS. 
ERNST  FREUND, 

University  of  Chicago. 
WM.  E.  MIKELL, 

University  of  Pennsylvania. 
JOHN  H.  WIGMORE,  Chairman. 

Northwestern  University. 
June  SO,  1907. 


"Sin*  hittoria,  caecam  ette  jurisprudentiam."    FRAXCISCUS  BALDUINUS. 

44 1  have  no  expectation  that  any  man  will  read  history  aright  who 
thinks  that  what  was  done  in  a  remote  age,  by  men  whose  names  have 
resounded  far,  has  any  deeper  sense  than  what  he  is  doing  to-day.  There 
is  no  age,  or  state  of  society,  or  mode  of  action,  in  history  to  which 
there  is  not  somewhat  corresponding  in  his  life.  .  .  .  History  must 
be  this  or  it  is  nothing:  Every  law  which  the  State  enacts  indicates 
a  fact  in  human  nature;  that  is  all.  We  must  in  ourselves  see  the  neces- 
sary reason  for  every  fact,  —  see  how  it  could  and  must  be.  We  assume 
that  we  under  like- influence  should  be  alike  affected,  and  should  achieve 
the  like;  and  we  aim  to  master  intellectually  the  steps,  and  reach  the 
same  height  or  the  same  degradation  that  our  fellow,  our  proxy,  has  done. 
All  inquiry  into  antiquity  is  the  desire  to  do  away  this  wild,  savage,  and 
preposterous  There  or  Then,  and  introduce  in  its  place  the  Here  and 
Now."  RALPH  WALDO  EMERSON,  Essay  on  History. 

"  For  the  true  historian,  two  attitudes  (as  I  opine)  are  requisite.  On 
the  one  hand,  he  must  find  interest  and  pleasure  in  the  truth  of  individ- 
ual facts,  —  must  value  details  for  their  own  sake.  If  he  possesses 
genuinely  this  avidity  for  the  pursuit  of  truth  in  its  manifold  variety, 
for  the  bare  facts  of  human  life,  then  he  will  surely  attain  satisfaction  in 
his  research,  regardless  of  their  larger  interpretations  and  tendencies, — 
just  as  he  takes  pleasure  in  the  flowers,  without  attempting  to  solve  the 
problems  of  their  botanical  classification.  Yet,  on  the  other  hand,  the 
historian  must  cultivate  breadth  of  view,  —  the  faculty  of  generalization. 
He  is  not  to  proceed  a  priori,  like  the  metaphysician.  But,  while  he  ob- 
serves and  describes  the  unfolding  of  the  details,  he  is  to  let  their  gen- 
eral trend  be  made  manifest,  —  their  inter-actions,  their  developments, 
their  epochs.  One  after  another,  the  events  appear  before  him;  the 
series  unites;  it  culminates  in  an  Epoch.  That  distinction  between  dates 
which  we  term  an  Epoch  lies  in  this,  that  out  of  the  struggle  of  the  two 
great  opposing  forces  —  the  predetermined  causation  of  the  past,  and 
the  spontaneous  variability  of  the  present  —  new  conditions,  and  thus  new 
periods,  gradually  emerge.  And  out  of  a  series  of  Epochs  is  built  up 
the  whole.  .  .  .  Thus,  while  each  separate  event  of  history  has  its  intrinsic 
value,  is  worth  investigation  for  its  own  sake,  yet  —  in  view  of  the  di- 
rection which  modern  research  is  taking  (and  must  indeed  insist  on  tak- 
ing, if  we  desire  accurate  knowledge)  —  it  is  fair  to  say  that  we  run 
some  danger  of  ignoring  the  larger  aspects,  that  broad  outlook  for  which 
every  one  has  a  legitimate  yearning.  Thus  to  unravel  the  full  trend  and 
meaning  of  events,  while  remaining  steadfast  to  the  strict  principles  of 
scientific  research,  will  indeed  be  always  an  unattainable  ideal.  Yet  a 
true  scholarship  recognizes  that  the  two  processes  may  and  must  go 
hand  in  hand.  Facts  without  their  philosophy  are  but  barren  and  frigid 
chronicles.  And  philosophies  of  history  not  built  on  a  rigid  basis  of  fact 
are  but  delusive  fancies."  LEOPOLD  vox  RANKE,  World  History,  Part  IX, 
Sect  II,  The  Epochs  of  Modern  History,  Introduction. 


SELECT    ESSAYS    IN 
ANGLO-AMERICAN    LEGAL    HISTORY 


VOLUME  I 
GENERAL  SURVEYS 


CONTENTS 
BOOK    I:    GENERAL    SURVEYS 

PART  I.      BEFORE  THE  NORMAN  CONQUEST 

"  1.  A  Prologue  to  a  History  of  English  Law      .          .         7 
FREDERIC  WILLIAM  MAITLAND 

St.  The  Development  of  Teutonic  Law  s  .          .          .       34 

EDWARD  JENKS 

8.  English  Law  before  the  Norman  Conquest  .          .       88 
SIR  FREDERICK  POLLOCK,  BART. 


PART  II.   FROM  THE  NORMAN  CONQUEST  TO  THE  EIGHTEENTH 

CENTURY 

4.  The    Centralization    of    Norman    Justice    under 

Henry    II  .          .          .          .          .          .111 

ALICE  STOPFORD  (MRS.  JOHN  RICHARD)  GREEN 

5.  Edward  I,  the  English  Justinian          .          .          .     139 

EDWARD  JENKS 

6.  English  Law  and  the  Renaissance       .          .          .168 

FREDERIC  WILLIAM  MAITLAND 

7.  Roman     Law     Influence     in     Chancery,     Church 

Courts,  Admiralty,  and  Law  Merchant  .          .     208 

THOMAS  EDWARD  SCRUTTON 
*  8.  The  History  of  the  Canon  Law  in  England  .          .     248 

WILLIAM  STUBBS 
9.  The  Development  of  the  Law  Merchant       .          .     289 

WILLIAM  SEARLE  HOLDSWORTH 

10.  A  Comparison  of  the  History  of  Legal  Develop- 
ment at  Rome  and  in  England       .          .          .     332 

JAMES  BRYCE 
2 


CONTENTS 


PART  UI.      THE  AMERICAN   COLONIAL  PERIOD 

11.  English    Common    Law    in    the    Early    American 

Colonies  .          .          .     PAUL  SAMUEL  REINSCH     367 

12.  The  Extension  of  English  Statutes  to  the  Plan- 

tations        .          ST.  GEORGE  LEAKIN  SIOUSSAT     416 

13.  The    Influence    of   Colonial    Conditions,    as    Illus- 

trated in  the  Connecticut  Intestacy  Law  .          .     431 
CHARLES  McLEAN  ANDREWS 


PART    IV.       EXPANSION    AND    REFORM    OF    THE    LAW    IN    THE 
NINETEENTH    CENTURY 

14.  Anticipations      under      the      Commonwealth      of 

Changes  in  the  Law     .          .          R.  ROBINSON     467 

15.  Bentham's  Influence  in  the  Reforms  of  the  Nine- 

teenth Century     .          JOHN  FORREST  DILLON     492 

16.  Progress  in  the  Administration  of  Justice  during 

the  Victorian  Period       .          .          .          .          .516 
CHARLES   SYNGE   CHRISTOPHER,  BARON  BOWEN 

17.  Thfc   Development    of   Jurisprudence    during    the 

Nineteenth   Century         .....     558 
JOSEPH  HENRY  BEALE,  JR. 

v   18.  The    Extension    of    Roman    and    English    Law 

throughout  the  World         .         JAMES  BRYCE     574 


PART  V.   BENCH  AND  BAR  FROM  NORMAN  TIMES  TO 
NINETEENTH  CENTURY 

19.  The  Five  Ages  of  the  Bench  and  Bar  of  Eng- 

land .          .          .         JOHN  MAXCY  ZANE     625 

20.  A  Century  of  English  Judicature   .    .          .         .     730 

VAN  VECHTEN  VEEDER 

21.  An  American  Law  Student  of  a  Hundred  Years 

Ago    ...         .         .         .         JAMES  KENT     837 


A  TABLE  OF  BRITISH  REGNAL  YEARS 

Sovereigns  Commencement  of   Reign 

William    I October  14,  1066 

•William     II September  26,  1087 

Henry    I August  5,  1100 

Stephen     December  26,  1135 

Henry    II December  19,  1154 

Richard    I September    23,    1189 

John -May  27,  1199 

Henry  III  October  28,  1216 

Edward  I November  20,  1272 

Edward  II July  8-,  1307 

Edward    III January   25,   1326 

Richard    II June  22,  1377 

Henry    IV September  30,   1399. 

Henry    V March  21,  1413 

Henry    VI September   1,   1422 

Edward    IV March  4,  1461 

Edward   V April  9,   1483 

Richard    III .June  26,  1483 

Henry    VII August    22,    1485 

Henry    VIII April  22,  1509 

Edward    VI January   28,   1547 

Mary    July  6,  1553 

Elizabeth     November  17,  1558 

James    I March  24,  1603 

Charles    I March  27,  1625" 

The   Commonwealth    January  30,  1649 

Charles    II ' May  29,  1660 

James    II February  6,  1685 

William  and  Mary  February  13,  1689 

Anne    March  8,  1702 

George    I August  1,  1714 

George    II June  11,  1727 

George  III October   25,    1760 

George  IV , January  29,  1820 

JVilliam    IV June    26,    1830 

Victoria June  20,  1837 

Edward   VII January  22,  1901 

1  Although  Charles  II.  did  not  ascend  the  throne  until  29th  May,  1660, 
his  regnal  years  were  computed  from  the  death  of  Charles  I.,  January 
30,  1649,  so  that  the  year  of  his  restoration  is  styled  the  twelfth  year  of 
his  reign. 


PART  I. 

BEFORE    THE    NORMAN    CONQUEST 

1.  A  Prologue  to  a  History  of  English  Law. 

FREDERIC  WILLIAM  MAITLAND. 

2.  The  Development  of  Teutonic  Law. 

EDWARD  JENKS. 

3.  English  Law  Before  the  Norman  Conquest. 

SIR  FREDERICK  POLLOCK. 


SELECT  ESSAYS 

IN 

ANGLO-AMERICAN  LEGAL  HISTORY 


1.  A  PROLOGUE  TO  A  HISTORY  OF  ENGLISH  LAW 

BY  FREDERIC  WILLIAM  MAITLAND  2 


is  the  unity  of  all  history  that  any  one  who  endeav- 
ours  to  tell  a  piece  of  it  must  feel  that  his  first  sentence 
tears  a  seamless  web.  The  oldest  utterance  of  English  law 
that  has  come  down  to  us  has  Greek  words  in  it:  words  such 
as  bishop,  priest,  and  deacon.3  If  we  would  search  out  the 
origins  of  Roman  law,  we  must  study  Babylon  :  this  at  least 
was  the  opinion  of  the  great  Romanist  of  our  own  day.4  A 
statute  of  limitations  must  be  set  ;  but  it  must  be  arbitrary. 
The  web  must  be  rent  ;  but,  as  we  rend  it,  we  may  watch 

*This  essay  was  first  published  in  the  Law  Quarterly  Review,  1898, 
vol.  XIV,  pp.  13-33;  and  afterwards  was  prefixed  to  the  second  edition 
of  the  "History  of  English  Law,"  1899  (Cambridge,  University  Press; 
Boston,  Little,  Brown  &  Co.). 

'1850-1906;  M.  A.,  Trinity  College  (Cambridge);  Barrister  of  Lin- 
coln's Inn;  Reader  of  English  Law  at  Cambridge,  1888;  Downing  Pro- 
fessor of  the  Laws  of  England  at  Cambridge,  1888-1906;  Bencher  of 
Lincoln's  Inn  ;  LL.  D.,  D.  C.  L.,  Oxford,  Glasgow,  Cracow. 

Other  Publications:  Gloucester  Pleas,  1884;  Justice  and  Police,  1885; 
Bracton's  Note-Book,  1887;  History  of  English  Law  before  the  Time  of 
Edward  I  (with  Sir  F.  Pollock),  1895;  Domesday  Book  and  Beyond, 
1897;  Township  and  Borough,  1898;  Canon  Law  in  England,  1898; 
Introduction  to  Gierke's  Political  Theories  of  the  Middle  Ages,  1900; 
English  Law  and  the  Renaissance,  1901  ;  prefaces  to  several  volumes 
of  the  Selden  Society's  publications;  editor  of  the  Year-Books  of 
Edward  II  (Selden  Society,  1904-6).  The  miscellaneous  essays  and 
minor  books  of  Professor  Maitland  are  now  being  edited  for  publication 
in  collected  form  by  the  University  Press,  Cambridge  (Eng.). 

'^Ethelb.  1. 

*Ihering,  Vorgeschichte  der  Indoeuropaer  ;  see  especially  the  editor's 
preface. 


8   7.  BEFORE  THE  NOKMAX  CONQUEST 

the  whence  and  whither  of  a  few  of  the  severed  and  ravelling 
threads  which  have  been  making  a  pattern  too  large  for  any 
man's  eye. 

To  speak  more  modestly,  we  may,  before  we  settle  to  our 
task,  look  round  for  a  moment  at  the  world  in  which  our 
English  legal  history  has  its  beginnings.  We  may  recall  to 
memory  a  few  main  facts  and  dates  which,  though  they  are 
easily  ascertained,  are  not  often  put  together  in  one  English 
book,  and  we  may  perchance  arrange  them  in  a  useful  order 
if  we  make  mile-stones  of  the  centuries. 1 

By  the  year  200  Roman  jurisprudence  had  reached  its 
zenith.  Papinian  was  slain  in  212, 2  Ulpian  in  228. 3  Ul- 
pian's  pupil  Modestinus  may  be  accounted  the  last  of  the 
great  lawyers.4  All  too  soon  they  became  classical;  their 
successors  were  looking  backwards,  not  forwards.  Of  the 
work  that  had  been  done  it  were  folly  here  to  speak;  but* 
the  law  of  a  little  town  had  become  ecumenical  law,  law  alike 
for  cultured  Greece  and  for  wild  Britain.  And  yet,  though 
it  had  assimilated  new  matter  and  new  ideas,  it  had  always 
preserved  its  tough  identity.  In  the  year  200  six  centuries 
and  a  half  of  definite  legal  history,  if  we  measure  only  from 
the  Twelve  Tables,  were  consciously  summed  up  in  the  living 
and  growing  body  of  the  law. 

Dangers  lay  ahead.  We  notice  one  in  a  humble  quarter. 
Certain  religious  societies,  congregations  (ecclesiae)  of  non- 
conformists, have  been  developing  law,  internal  law,  with 
ominous  rapidity.  We  have  called  it  law,  and  law  it  was 
going  to  be;  but  as  yet  it  was,  if  the  phrase  be  tolerable, 
unlawful  law,  for  these  societies  had  an  illegal,  if  not  a  crim- 

1  The  following  summary  has  been  compiled  by  the  aid  of  Karlowa, 
Romische  Reehtsgeschichte,  1885  —  Kriiger,  Geschichte  der  Quellen  des 
romischen  Rechts,  1888  —  Conrat,  Geschichte  der  Quellen  des  romischen 
Rechts  im  friiheren  Mittelalter,  1889  —  Maassen,  Geschichte  der  Quellen 
des  canonischen  Rechts,  1870  —  Loning,  Geschichte  des  deutschen  Kir- 
chenrechts,  1878  —  Sohm,  Kirchenrecht,  1892  —  Hinschius,  System  des 
katholischen  Kirchenrechts,  1869  ff.  —  A.  Tardif,  Histoire  des  sources 
du  droit  canonique,  1887  —  Brunner,  Deutsche  Reehtsgeschichte,  1887 
—  Schroder,  Lehrhuch  der  deutschen  Reehtsgeschichte,  ed.  2,  1894  — 
Esmein,  Cours  d'histoire  du  droit  francais,  ed.  2,  1895  —  Viollet,  His- 
toire du  droit  civil  frnnsais,  1893. 

*  Kriiger,  op.  cit.  198;  Karlowa,  op.  cit.  i.  736. 
»  Krtiger,  op.  cit.  215;  Karlowa,  op.  cit  i.  741. 

*  Kriiger,  op.  cit.  226;    Karlowa,  op.  cit.  i.  752. 


1.     M  AIT  LAND:    A    PROLOGUE 


inal  purpose.  Spasmodically  the  imperial  law  was  enforced 
against  them ;  at  other  times  the  utmost  that  they  could 
hope  for  from  the  state  was  that  in  the  guise  of  "  benefit  and 
burial  societies  "  they  would  obtain  some  protection  for  their 
communal  property.1  But  internally  they  were  developing 
what  was  to  be  a  system  of  constitutional  and  governmental 
law,  which  would  endow  the  overseer  (episcopus)  of  every  con- 
gregation with  manifold  powers.  Also  they  were  developing 
a  system  of  punitive  law,  for  the  offender  might  be  excluded 
from  all  participation  in  religious  rites,  if  not  from  worldly 
intercourse  with  the  faithful.2  Moreover,  these  various  com- 
munities were  becoming  united  by  bonds  that  were  too  close  to 
be  federal.  In  particular,  that  one  of  them  which  had  its  seat 
in  the  capital  city  of  the  empire  was  winning  a  pre-eminence 
for  itself  and  its  overseer.3  Long  indeed  would  it  be  before 
this  overseer  of  a  non-conformist  congregation  would,  in  the 
person  of  his  successor,  place  his  heel  upon  the  neck  of  the 
prostrate  Augustus  by  virtue  of  God-made  law.  This  was  not 
to  be  foreseen;  but  already  a  merely  human  jurisprudence 
was  losing  its  interest.  The  intellectual  force  which  some 
years  earlier  might  have  taken  a  side  in  the  debate  between 
Sabinians  and  Proculians  now  invented  or  refuted  a  christo- 
logical  heresy.  Ulpian's  priesthood4  was  not  priestly 
enough.5 

The  decline  was  rapid.  Long  before  the  year  300  juris- 
prudence, the  one  science  of  the  Romans,  was  stricken  with 
sterility ; 6  it  was  sharing  the  fate  of  art.7  Its  eyes  were 

1  Loning,  op.  cit.  i.  195  if. ;    Sohm,  op.  cit.  75.     Loning  asserts  that  in 
the  intervals  between  the  outbursts  of  persecution  the  Christian  com- 
munities were  legally  recognized  as  collegia  tenuiorum,  capable  of  hold- 
ing property.    Sohm  denies  this. 

2  Excommunication    gradually    assumes    its    boycotting    traits.      The 
clergy  were  prohibited,  while  as  yet  the  laity  were  not,  from  holding 
converse  with  the  offender.     Loning,  op.  cit.  i.  264;    Hinschius,  op.  cit. 
iv.  704. 

8  Sohm,  op.  cit.  378  ff . ;    Loning,  op.  cit.  i.  423  ff. 

4  Dig.  1.  1.  1. 

5 The  moot  question  (Kriiger,  op.  cit.  203;  Karlowa,  op.  cit.  i.  739) 
whether  the  Tertullian  who  is  the  apologist  of  Christian  sectaries  is  the 
Tertullian  from  whose  works  a  few  extracts  appear  in  the  Digest  may 
serve  as  a  mnemonic  link  between  two  ages. 

•Kriiger,  op.  cit.  260;    Karlowa,  op.  cit.  i.  932. 

7  Gregorovius,  History  of  Rome   (transl.  Hamilton),  i.  85. 


10      /.     BEFORE    THE    NORMAN    CONQUEST 

turned  backwards  to  the  departed  great.  The  constitutions 
of  the  emperors  now  appeared  as  the  only  active  source  of 
law.  They  were  a  disordered  mass,  to  be  collected  rather  than 
digested.  Collections  of  them  were  being  unofficially  made: 
the  Codex  Gregorianus,  the  Codex  Hermogenianus.  These 
have  perished;  they  were  made,  some  say,  in  the  Orient.1 
The  shifting  eastward  of  the  imperial  centre  and  the  tendency 
of  the  world  to  fall  in  two  halves  were  not  for  the  good  of 
the  West.  Under  one  title  and  another,  as  coloni,  laeti, 
gentiles,  large  bodies  of  untamed  Germans  were  taking  up 
their  abode  within  the  limit  of  the  empire.2  The  Roman 
armies  were  becoming  barbarous  hosts.  Constantine  owed 
his  crown  to  an  Alamannian  king.3 

It  is  on  a  changed  world  that  we  look  in  the  year  400. 
After  one  last  flare  of  persecution  (303),  Christianity 
became  a  lawful  religion  (313).  In  a  few  years  it,  or  rather 
one  species  of  it,  had  become  the  only  lawful  religion.  The 
"  confessor  "  of  yesterday  was  the  persecutor  of  to-day. 
Heathenry,  it  is  true,  died  hard  in  the  West;  but  already 
about  350  a  pagan  sacrifice  was  by  the  letter  of  the  law  a 
capital  crime.4  Before  the  end  of  the  century  cruel  statutes 
were  being  made  against  heretics  of  all  sorts  and  kinds.5 
No  sooner  was  the  new  faith  lawful,  than  the  state  was 
compelled  to  take  part  in  the  multifarious  quarrels  of  the 
Christians.  Hardly  had  Constantine  issued  the  edict  of 
tolerance,  than  he  was  summoning  the  bishops  to  Aries  (314), 
even  from  remote  Britain,  that  they  might,  if  this  were 
possible,  make  peace  in  the  church  of  Africa.6  In  the  history 
of  law,  as  well  as  in  the  history  of  dogma,  the  fourth 
century  is  the  century  of  ecclesiastical  councils.  Into  the 
debates  of  the  spiritual  parliaments  of  the  empire  7  go  wlmt- 

'Krilger,  op.  cit.  277ff.;    Karlowa,  op.  cit.  i.  941  ff.     It  is  thought 
tlie  original  edition  of  the  Gregorianus  was  made  about  A.  D.  295, 
it  of  the  Hermogenianus  between  314  and  324.     But  their  dates  are 
uncertain.     For  their  remains  see  Corpus  luris  Anteiustiniani. 

!  B.nmner'  °P-  cit-  *•  32-39-  '  Ibid.  38.  •  Loning,  op.  cit.  i.  44. 

T?£!xg'  °P-  cit  L  97~98'  "reckons  68  statutes  from  fifty-seven  years 

— 


•Hefele  Cpnciliengeschichte,  i.  201.  For  the  presence  of  the  British 
bishops,  see  Haddan  and  Stubbs,  Councils,  i.  7. 

'Sohrn,  op.  cit.  443:  "Das  okumenische  Koncil,  die  Reichssynode 
.  .  .  bedeutet  em  geistliches  Parlament  des  Kaisertums." 


1.     MAITLAND:   A    PROLOGUE  11 

ever  juristic  ability  and  whatever  power  of  organization  are 
left  among  mankind.  The  new  supernatural  jurisprudence 
was  finding  another  mode  of  utterance;  the  bishop  of  Rome 
was  becoming  a  legislator,  perhaps  a  more  important  legis- 
lator than  the  emperor.1  In  380  Theodosius  himself  com- 
manded that  all  the  peoples  which  owned  his  sway  should 
follow,  not  merely  the  religion  that  Christ  had  delivered  to 
the  world,  but  the  religion  that  St.  Peter  had  delivered  to  the 
Romans.2  For  a  disciplinary  jurisdiction  over  clergy  and 
laity  the  state  now  left  a  large  room  wherein  the  bishops 
ruled.3  As  arbitrators  in  purely  secular  disputes  they  were 
active ;  it  is  even  probable  that  for  a  short  while  under  Con- 
stantine  one  litigant  might  force  his  adversary  unwillingly 
to  seek  the  episcopal  tribunal.4  It  was  necessary  for  the 
state  to  protest  that  criminal  jurisdiction  was  still  in  its 
hands. 5  Soon  the  church  was  demanding,  and  in  the  West  it 
might  successfully  demand,  independence  of  the  state  and 
even  a  dominance  over  the  state:  the  church  may  command 
and  the  state  must  obey.6  If  from  one  point  of  view  we  see 
this  as  a  triumph  of  anarchy,  from  another  it  appears  as  a 
triumph  of  law,  of  jurisprudence.  Theology  itself  must 
become  jurisprudence,  albeit  jurisprudence  of  a  supernatural 
sort,  in  order  that  it  may  rule  the  world. 

Among  the  gigantic  events  of  the  fifth  century  the  issue  of 
a  statute-book  seems  small.  Nevertheless,  through  the  tur- 
moil we  see  two  statute-books,  that  of  Theodosius  II  and  that 
of  Euric  the  West  Goth.  The  Theodosian  code  was  an 
official  collection  of  imperial  statutes  beginning  with  those  of 
Constantine  I.  It  was  issued  in  438  with  the  consent  of 
Valentinian  III  who  was  reigning  in  the  West.  No  perfect 
copy  of  it  has  reached  us. 7  This  by  itself  would  tell  a  sad 

1  Sohm,  op.  cit.  418.  If  a  precise  date  may  be  fixed  in  a  very  gradual 
process,  we  may  perhaps  see  the  first  exercise  of  legislative  power  in  the 
decretal  (A.  D.  385)  of  Pope  Siricius. 

*  Cod.  Theod.  16.  1.  2. 

3  Loning,  op.  cit.  i.  262  ff.;    Hinschius,  op.  cit.  iv.  788  ff. 

4  Loning,  op.  cit.  i.  293;   Karlowa,  op.  cit.  i.  966.    This  depends  on  the 
genuineness  of  Constit.  Sirmond.  1. 

6  Loning,  op.  cit.  i.  305;    Hinschius,  op.  cit.  iv.  794. 

6  Loning,  op.  cit.  i.  64-94. 

7  Kriiger,  op.  cit.  285  ff . ;    Karlowa,  op.  cit.  i.  944. 


12      /.     BEFORE    THE    NORMAN    CONQUEST 

tale;  but  we  remember  how  rapidly  the  empire  was  being 
torn  in  shreds.  Alrea'dy  Britain  was  abandoned  (407).  We 
may  doubt  whether  the  statute-book  of  Theodosius  ever 
reached  our  shores  until  it  had  been  edited  by  Jacques 
Godcfroi.1  Indeed  we  may  say  that  the  fall  of  a  loose  stone 
in  Britain  brought  the  crumbling  edifice  to  the  ground.2 
Already  before  this  code  was  published  the  hordes  of  Alans, 
Vandals,  and  Sueves  had  swept  across  Gaul  and  Spain ; 
already  the  Vandals  were  in  Africa.  Already  Rome  had  been 
sacked  by  the  West  Goths ;  they  were  founding  a  kingdom 
in  southern  Gaul  and  were  soon  to  have  a  statute-book  of 
their  own.  Gaiseric  was  not  far  off,  nor  Attila.  Also  let  us 
remember  that  this  Theodosian  Code  was  by  no  means  well 
designed  if  it  was  to  perpetuate  the  memory  of  Roman  civil 
science  in  a  stormy  age.  It  was  no  "  code  "  in  our  modern 
sense  of  that  term.  It  was  only  a  more  or  less  methodic 
collection  of  modern  statutes.  Also  it  contained  many  things 
that  the  barbarians  had  better  not  have  read;  bloody  laws 
against  heretics,  for  example. 

We  turn  from  it  to  the  first  monument  of  Germanic  law 
that  has  come  down  to  us.  It  consists  of  some  fragments  of 
what  must  have  been  a  large  law-book  published  by  Euric  for 
his  West  Goths,  perhaps  between  470  and  475.3  Euric  was 
a  conquering  king;  he  ruled  Spain  and  a  large  part  of 
southern  Gaul ;  he  had  cast  off,  so  it  is  said,  even  the  pretence 
of  ruling  in  the  emperor's  name.  Nevertheless,  his  laws  are 
not  nearly  so  barbarous  as  our  curiosity  might  wish  them  to 
be.  These  West  Goths  who  had  wandered  across  Europe 
were  veneered  by  Roman  civilization.  It  did  them  little  good. 
Their  later  law-books,  that  of  Reckessuinth  (652-672),  that 
of  Erwig  (682),  that  of  Egica  (687-701),  are  said  to  be 
verbose  and  futile  imitations  of  Roman  codes.  But  Euric's 
laws  are  sufficient  to  remind  us  that  the  order  of  date  among 
these  Leges  Barbarorum  is  very  different  from  the  order  of 

1  The  Breviary  of  Alaric  is  a  different  matter. 

*  Bury,  History  of  the  Later  Roman  Empire,  i.  142:    "And  thus  wd 
may  say  that  it  was  the  loss  or  abandonment  of  Britain  in  407  that  led 
to  the  further  loss  of  Spain  and  Africa." 

*  Zeumer,  Leges  Visigothorum  Antiquiores,  1894;    Brunner,  op.  cit.  i. 
320;   Schroder,  op.  cit  230. 


1.     M  AIT  LAND:    A    PROLOGUE  13 

barbarity.  Scandinavian  laws  that  are  not  written  until  the 
thirteenth  century  will  often  give  us  what  is  more  archaic 
than  anything  that  comes  from  the  Gaul  of  the  fifth  or  the 
Britain  of  the  seventh.  And,  on  the  other  hand,  the  mention 
of  Goths  in  Spain  should  remind  us  of  those  wondrous  folk- 
wanderings  and  of  their  strange  influence  upon  the  legal  map 
of  Europe.  The  Saxon  of  England  has  a  close  cousin  in  the 
Lombard  of  Italy,  and  modern  critics  profess  that  they  can 
seea  specially  near  kinship  between  Spanish  and  Icelandic  law.1 

In  legal  history  the  sixth  century  is  the  century  of  Jus- 
tinian. But  in  the  west  of  Europe  this  age  appears  as  his, 
only  if  we  take  into  account  what  was  then  a  remote  future. 
How  powerless  he  was  to  legislate  for  many  of  the  lands  and 
races  whence  he  drew  his  grandiose  titles  —  Alamannicus, 
Gothicus,  Franciciw  and  the  rest  —  we  shall  see  if  we  inquire 
who  else  had  been  publishing  laws.  The  barbarians  had  been 
writing  down  their  customs.  The  barbarian  kings  had  been 
issuing  law-books  for  their  Roman  subjects.  Books  of 
ecclesiastical  law,  of  conciliar  and  papal  law,  were  being 
compiled.2 

The  discovery  of  fragments  of  the  laws  of  Euric  the  West 
Goth  has  deprived  the  Lex  Salica  of  its  claim  to  be  the  oldest 
extant  statement  of  Germanic  custom.  But  if  not  the  oldest, 
it  is  still  very  old ;  also  it  is  rude  and  primitive. 3  It  comes  to 
us  from  the  march  between  the  fifth  and  the  sixth  centuries ; 
almost  certainly  from  the  victorious  reign  of  Chlodwig  (486- 
511).  An  attempt  to  fix  its  date  more  closely  brings  out  one 
of  its  interesting  traits.  There  is  nothing  distinctively 
heathen  in  it;  but  (and  this  makes  it  unique4)  there  is 

1  Ficker,    Untersuchungen    zur    Erbenfolge,    1891-5;     Picker,    Ueber 
nahere   Verwandtschaft   zwischen   gothisch-spanischem    und   norwegisch- 
islandischem    Recht     (Mittheilungen    des    Instituts    fiir    osterreichische 
Geschichtsforschung,   1888,  ii.   456   if.).     These  attempts  to  reconstruct 
the   genealogy   of  the   various   Germanic   systems   are   very   interesting, 
if  hazardous. 

2  For  a  map  of  Europe   at  the  time  of  Justinian's   legislation  see 
Hodgkin,  Italy  and  her  Invaders,  vol.  iv.  p.  1. 

3  Brunner,  op.  cit.  i.  292  ff. ;    Schroder,  op.  cit.  226  ff.;    Esmein,  op. 
cit.  102  ff. ;    Dahn,  Die  Konige  der  Germanen,  vii.   (2)  50  ff.;    Hessels 
and  Kern,  Lex  Salica,  The  ten  texts,  1880. 

4  However,  there  are  some  curious   relics  of  heathenry  in  the  Lex 
Fris'ionum:   Brunner,  op.  cit.  i.  342. 


14     /.     BEFORE    THE    NORMAN    CONQUEST 

nothing  distinctively  Christian.  If  the  Sicambrian  has 
already  bowed  his  neck  to  the  catholic  yoke,  he  is  not  yet 
actively  destroying  by  his  laws  what  he  had  formerly 
adored.1  On  the  other  hand,  his  kingdom  seems  to  stretch 
south  of  the  Loire,  and  he  has  looked  for  suggestions  to  the 
laws  of  the  West  Goths.  The  Lex  Salica,  though  written  in 
Latin,  is  very  free  from  the  Roman  taint.  It  contains  in  the 
so-called  Malberg  Glosses  many  old  Frankish  words,  some  of 
which,  owing  to  mistranscription,  are  puzzles  for  the  philo- 
1  logical  science  of  our  own  day.  Like  the  other  Germanic 
folk-laws,  it  consists  largely  of  a  tariff  of  offences  and  atone- 
ments; but  a  few  precious  chapters,  every  word  of  which 
has  been  a  cause  of  learned  strife,  lift  the  curtain  for  a 
moment  and  allow  us  to  watch  the  Frank  as  he  litigates. 
We  see  more  clearly  here  than  elsewhere  the  formalism,  the 
sacramental  symbolism  of  ancient  legal  procedure.  We  have 
no  more  instructive  document ;  and  let  us  remember  that,  by 
virtue  of  the  Norman  Conquest,  the  Lex  Salica  is  one  of  the 
ancestors  of  English  law. 

Whether  in  the  days  when  Justinian  was  legislating,  the 
Western  or  Ripuarian  Franks  had  written  law  may  not  be 
certain;  but  it  is  thought  that  the  main  part  of  the  Lex 
Ribuaria  is  older  than  596. 2  Though  there  are  notable 
variations,  it  is  in  part  a  modernized  edition  of  the  Salica, 
showing  the  influence  of  the  clergy  and  of  Roman  law.  On 
the  other  hand,  there  seems  little  doubt  that  the  core  of  the 
Lex  Burgundionum  was  issued  by  King  Gundobad  (474-516) 
in  the  last  years  of  the  fifth  century.3 

Burgundians  and  West  Goths  were  scattered  among 
Roman  provincials.  They  were  East  Germans;  they  had 
long  been  Christians,  though  addicted  to  the  heresy  of  Arius. 
They  could  say  that  they  had  Roman  authority  for  their 
occupation  of  Roman  soil.  Aquitania  Secunda  had  been  made 
over  to  the  West  Goths;  the  Burgundians  vanquished  by 

1  Greg.  Turon.  ii.  22  (ed.  Omont,  p.  60) :  "  Mitis  depone  colla,  Sickm- 
ber;  adora  quod  incendisti,  incende  quod  adorasti." 

*  Brunner,  op.  cit.  i.  303  ff.;    Schroder,  op.  cit.  229;    Esraein,  op.  cit 

107.  Edited  by  Sohm  in  Monumenta  Gennanica. 

•  Brunner,  op.  cit.  k  332  ff.;    Schroder,  op.  cit  234;    Esmein,  op.  cit. 

108.  Edited  by  v.  Salis  in  M.  G. 


1.     MAITLAND:    A    PROLOGUE  15 

Aetius  had  been  deported  to  Savoy.1  In  their  seizure  of 
lands  from  the  Roman  possessors  they  had  followed,  though 
with  modifications  that  were  profitable  to  themselves,  the 
Roman  system  of  billeting  barbarian  soldiers.2  There  were 
many  Romani  as  well  as  many  barbari  for  whom  their  kings 
could  legislate.  Hence  the  Lex  Romano,  Burgimdionum  and 
the  Lex  Romana  Visigothorum.  The  former  3  seems  to  be  the 
law-book  that  Gundobad  promised  to  his  Roman  subjects; 
he  died  in  516.  Rules  have  been  taken  from  the  three  Roman 
codices,  from  the  current  abridgments  of  imperial  constitu- 
tions and  from  the  works  of  Gaius  and  Paulus.  Little  that 
is  good  has  been  said  of  this  book.  Far  more  comprehensive 
and  far  more  important  was  the  Breviary  of  Alaric  or  Lex 
Romana  Visigothorum.4  Euric's  son,  Alaric  II*  published  it 
in  506  as  a  statute-book ;  among  the  Romani  of  his  realm  it 
was  to  supplant  all  older  books.  It  contained  large  excerpts 
from  the  Theodosian  Codex,  a  few  from  the  Gregorianus  and 
Hermogenianus,  some  post-Theodosian  constitutions,  some  of 
the  Sententiae  of  Paulus,  one  little  scrap  of  Papinian  and  an 
abridged  version  of  the  Institutes  of  Gaius.  The  greater 
part  of  these  texts  was  equipped  with  a  running  commentary 
(interpretatio}  which  attempted  to  give  their  upshot  in  a 
more  intelligible  form.  It  is  thought  nowadays  that  this 
"  interpretation  "  and  the  sorry  version  of  (jaius  represent, 
not  Gothic  barbarism,  but  degenerate  Roman  science.  A 
time  had  come  when  lawyers  could  no  longer  understand  their 
own  old  texts  and  were  content  with  debased  abridgments.5 
The  West  Goths'  power  was  declining.  Hardly  had  Alaric 
issued  his  statute-book  when  he  was  slain  in  battle  by  the 
Franks.  Soon  the  Visigothic  became  a  Spanish  kingdom. 
But  it  was  not  in  Spain  that  the  Breviarium  made  its  perma- 
nent mark.  There  it  was  abrogated  by  Reckessuinth  when 
he  issued  a  code  for  all  his  subjects  of  every  race.6  On  the 
other  hand,  it  struck  deep  root  in  Gaul.  It  became  the  prin- 

1  Brunner,  op.  cit.  i.  50-1.          2  Ibid.  64-7. 

8  Kriiger,  op.  cit.  317;   Brunner,  op.  cit.  i.  354;   Schroder,  op.  cit.  234. 
Edited  by  v.  Salis  in  M.  G. 

4  Kriiger,  op.  cit.  309 ;   Brunner,  op.  cit.  i.  358.    Edited  by  Hanel,  1849. 

5  Karlowa,  op.  cit.  i.  976. 
8  See  above,  p.  17. 


16      /.     BEFORE    THE    NORMAN    CONQUEST 

cipal,  if  not  the  only,  representative  of  Roman  law  in  the 
expansive  realm  of  the  Franks.  But  even  it  was  too  bulky 
for  men's  needs.  They  made  epitomes  of  it  and  epitomes  of 
epitomes. 1 

Then,  again,  we  must  remember  that  while  Tribonian  was 
busy  upon  the  Digest,  the  East  Goths  were  still  masters  of 
Italy.  We  recall  the  event  of  476;  one  emperor,  Zeno  at 
Byzantium,  was  to  be  enough.  Odovacer  had  ruled  as  patri- 
cian and  king.  He  had  been  conquered  by  the  East  Goths. 
The  great  Theodoric  had  reigned  for  more  than  thirty 
years  (493-526) ;  he  had  tried  to  fuse  Italians  and  Goths 
into  one  nation ;  he  had  issued  a  considerable  body  of  law,  the 
Edictum  Theodorici,  for  the  more  part  of  a  criminal  kind.2 

Lastly,  it  must  not  escape  us  that  about  the  year  500 
there  was  in  Rome  a  monk  of  Scythian  birth  who  was  labour- 
ing upon  the  foundations  of  the  Corpus  luris  Canonici.  He 
called  himself  Dionysius  Exiguus.  He  was  an  expert  chro- 
nologist  and  constructed  the  Dionysian  cycle.  He  was  col- 
lecting and  translating  the  canons  of  eastern  councils ;  he 
was  collecting  also  some  of  the  letters  (decretal  letters  they 
will  be  called)  that  had  been  issued  by  the  popes  from  Siri- 
cius  onwards  (384-498). 8  This  Collectio  Dionysiana  made  its 
way  in  the  West.  Some  version  of  it. may  have  been  the  book 
of  canons  which  our  Archbishop  Theodore  produced  at  the 
Council  of  Hertford  in  673. 4  A  version  of  it  (Dionysio- 
Hadriana)  was  sent  by  Pope  Hadrian  to  Charles  the  Great 
in  774. 5  It  helped  to  spread  abroad  the  notion  that  the 
popes  can  declare,  even  if  they  can  not  make,  law  for  the 
universal  church,  and  thus  to  contract  the  sphere  of  secular 
jurisprudence. 

In  528  Justinian  began  the  work  which  gives  him  his  fame 
in  legal  history;  in  534,  though  there  were  novel  constitu- 

1  The  epitomes  will  be  found  in  HanePs  edition,  Lex  Romana 
Visipothorum,  1849. 

1  Brunner,  op.  cit  i.  365;  Karlowa,  op.  cit.  i.  947  ff.  Edited  by 
Bluhme  in  M.  G. 

•  Maassen,  op.  cit.  i.  422  ff.;   Tardif,  op.  cit.  110.     Printed  in  Migne, 
Patrologia,  vol.  67. 

4  Haddan  and  Stubbs,  Councils,  iii.  1 19.  See,  however,  the  remarks  of 
Mr.  C.  H.  Turner,  Eng.  Hist.  Rev.  ix.  727. 

•  Maassen,  op.  cit.  i.  441.  . 


1.     MAITLAND:   A    PROLOGUE  17 

tions  to  come  from  him,  it  was  finished.  Valuable  as  the  code 
of  imperial  statutes  might  be,  valuable  as  might  be  the  mod- 
ernized and  imperial  edition  of  an  excellent  but  ancient  school- 
book,  the  main  work  that  he  did  for  the  coming  centuries 
lies  in  the  Digest.  We  are  told  nowadays  that  in  the  Orient 
the  classical  jurisprudence  had  taken  a  new  lease  of  life, 
especially  in  the  schools  at  Berytus. 1  We  are  told  that  there 
is  something  of  a  renaissance,  something  even  of  an  antiqua- 
rian revival  visible  in  the  pages  of  the  Digest,  a  desire  to 
go  back  from  vulgar  practice  to  classical  text,  also  a  desire 
to  display  an  erudition  that  is  not  always  very  deep.  Great 
conqueror,  great  builder,  great  theologian,  great  law-giver, 
Justinian  would  also  be  a  great  master  of  legal  science  and 
legal  history.  The  narrow  escape  of  his  Digest  from  oblivion 
seems  to  tell  us  that,  but  for  his  exertions,  very  little  of  the 
ancient  treasure  of  wisdom  would  have'  reached  modern  times ; 
and  a  world  without  the  Digest  would  not  have  been  the  world 
that  we  know.  .  Let  us,  however,  remember  the  retrospective 
character  of  the  book.  The  ius,  the  unenacted  law,  ceased 
to  grow  three  hundred  years  ago.  In  time  Justinian  stands 
as  far  from  the  jurists  whose  opinions  he  collects  as  we  stand 
from  Coke  or  even  from  Fitzherbert. 

Laws  have  need  of  arms:  Justinian  knew  it  well.  Much 
depended  upon  the  fortunes  of  a  war.  We  recall  from  the 
Institutes  the  boast  that  Africa  has  been  reclaimed.  Little 
was  at  stake  there,  for  Africa  was  doomed  to  the  Saracens ; 
nor  could  transient  success  in  Spain  secure  a  western  home 
for  the  law-books  of  Byzantium.2  All  was  at  stake  in  Italy. 
The  struggle  with  the  East  Goths  was  raging;  Rome  was 
captured  and  recaptured.  At  length  the  emperor  was  vic- 
torious (552),  the  Goths  were  exterminated  or  expelled;  we 
hear  of- them  no  more.  Justinian  could  now  enforce  his  laws 
in  Italy,  and  this  he  did  by  the  pragmatic  sanction  'pro 
petitione  Vigilii  (554 ).3  Fourteen  years  were  to  elapse  and 
then  the  Lombard  hordes  under  Alboin  would  be  pouring 

1  Kriiger,  op.  cit.  319. 
1  Conrat,  op.  cit.  i.  32. 

8  Kriiger,  op.  cit.  354;    Karlowa,  op.  cit.  i.  938;    Hodgkin,  Italy  and 
her  Invaders,  vi.  319. 


18      /.     BEFORE    THE    NORMAN    CONQUEST 

down  upon  an  exhausted  and  depopulated  land.  Those  four- 
teen years  are  critical  in  legal  history ;  they  suffer  Justinian's 
books  to  obtain  a  lodgment  in  the  West.  The  occidental 
world  has  paid  heavily  for  Code  and  Digest  in  the  destruc- 
tion of  the  Gothic  kingdom,  in  the  temporal  power  of  the 
papacy,  and  in  an  Italy  never  united  until  our  own  day; 
but  perhaps  the  price  was  not  too  high.  Be  that  as  it  may, 
the  coincidence  is  memorable.  The  Roman  empire  centred 
in  New  Rome  has  just  strength  enough  to  hand  back  to  Old 
Rome  the  guardianship  of  her  heathen  jurisprudence,  now 
"enucleated"  (as  Justinian  says)  in  a  small  compass,  and 
then  loses  for  ever  the  power  of  legislating  for  the  West. 
True  that  there  is  the  dwindling  exarchate  in  Italy ;  true  that 
the  year  800  is  still  far  off ;  true  that  one  of  Justinian's  suc- 
cessors, Constantine  IV,  will  pay  Rome  a  twelve  days'  visit 
(663")  and  rob  it  of  ornaments  that  Vandals  have  spared;1 
but  with  what  we  must  call  Graeco-Roman  jurisprudence, 
with  the  Ecloga  of  Leo  the  Isaurian  and  the. Basilica  of  Leo 
the  Wise,  the  West,  if  we  except  some  districts  of  southern 
Italy,2  has  no  concern.  Two  halves  of  the  world  were  drift- 
ing apart,  were  becoming  ignorant  of  each  other's  language, 
intolerant  of  each  other's  theology.  He  who  was  to  be  the 
true*  lord  of  Rome,  if  he  loathed  the  Lombard,  loved  not 
the  emperor.  Justinian  had  taught  Pope  Vigilius,  the  Vigil- 
ius  of  the  pragmatic  sanction,  that  in  the  Byzantine  system 
the  church  must  be  a  department  of  the  state. 3  The  bishop 
of  Rome  did  not  mean  to  be  the  head  of  a  department. 

During  some  centuries  Pope  Gregory  the  Great  (590-604) 
is  one  of  the  "very  few  westerns  whose  use  of  the  Digest  can 
be  proved. 4  He  sent  Augustin  to  England.  Then  "  in  Au- 
gustin's  day,"  about  the  year  600,  ^Ethelbert  of  Kent  set  in 
writing  the  dooms  of  his  folk  "  in  Roman  fashion."'6  Not 

1  Gregorovius,  History  of  Rome  (transl.  Hamilton),  ii.  153  if.;  Oman, 
Dark  Ages,  237,  245. 

For  Byzantine  law  in  southern  Italy,  see  Conrat,  op.  cit.  i.  49. 

•  Hodgkin,   Italy   and   her   Invaders,   iv.   571    ff.i    "The   Sorrows   of 
Vigilius." 

•  Conrat,  op.  cit.  i.  8. 

•  Liebermann,  Gesetie  der  Angelsachsen,  p.  3.    The  first  instalment  of 
Dr.   Liebermann's  great   work  comes   to  our  hands  as   these  pages   go 
through  the  press.     Bede,  Hist.  Eccl.  lib.  2,  c.  5  (ed.  Plummer,  i.  90): 


1.     MAITLAND:   A    PROLOGUE  19 

improbably  he  had  heard  of  Justinian's  exploits ;  but  the 
dooms,  though  already  they  are  protecting  with  heavy  bot 
the  property  of  God,  priests  and  bishops,  are  barbarous 
enough.  They  are  also,  unless  discoveries  have  yet  to  be 
made,  the  first  Germanic  laws  that  were  written  in  a  Ger- 
manic tongue.  In  many  instances  the  desire  to  have  written 
laws  appears  so  soon  as  a  barbarous  race  is  brought  into 
contact  with  Rome.1  The  acceptance  of  the  new  religion 
must  have  revolutionary  consequences  in  the  world  of  law,  for 
it  is  likely  that  heretofore  the  traditional  customs,  even  if 
they  have  not  been  conceived  as  instituted  by  gods  who  are 
now  becoming  devils,  have  been  conceived  as  essentially  un- 
alterable. Law  has  been  the  old ;  new  law  has  been  a  con- 
tradiction in  terms.  And  now  about  certain  matters  there 
must  be  new  law.  What  is  more,  "  the  example  of  the  Ro- 
mans "  shows  that  new  law  can  be  made  by  the  issue  of  com- 
mands. Statute  appears  as  the  civilized  form  of  law.  Thus 
a  fermentation  begins  and  the  result  is  bewildering.  New 
resolves  are  mixed  up  with  statements  of  old  custom  in  these 
Leges  Barbarorum. 

The  century  which  ends  in  700  sees  some  additions  made 
to  the  Kentish  laws  by  Hlothaer  and  Eadric,  and  some  others 
made  by  Wihtraed ;  there  the  Kentish  series  ends.  It  also 
sees  in  the  dooms  of  Ine  the  beginning  of  written  law  in 
Wessex.2  It  also  sees  the  beginning  of  written  law  among 
the  Lombards ;  in  643  Rothari  published  his  edict ; 3  it  is 
accounted  to  be  one  of  the  best  statements  of  ancient  Ger- 
man usages.  A  little  later  the  Swabians  have  their  Lex 
Alamannorum,*  and  the  Bavarians  their  Lex  Baiuwariorum.5 

"  iuxta  exempla  Romanorum."  Bede  himself  (Opera,  ed.  Giles,  vol.  vi. 
p.  321)  had  read  of  Justinian's  Codex;  but  what  he  says  of  it  seems  to 
prove  that  he  had  never  seen  it:  Conrat,  op.  cit.  i.  99. 

1  Brunner,  op.  cit.  i.  283.  So  native  princes  in  India  have  imitated 
the  Indian  Penal  Code  within  their  states. 

*  Whether  we  have  Ine's  code  or  only  an  Alfredian  recension  of  it  is 
a  difficult  question,  lately  discussed  by  Turk,  Legal  Code  of  Alfred 
(Halle,  1893),  p.  42. 

8  Brunner,  op.  cit.  i.  368 ;  Schroder,  op.  cit.  236.   Edited  by  Bluhme  in  M.G. 

4  Brunner,  op.  cit.  i.  308;  Schroder,  op.  cit.  238.  Edited  by  Lehmann 
in  M.  G.  There  are  fragments  of  a  Pactus  Alamannorum  from  circ. 
600.  The  Lex  is  supposed  to  come  from  717-9. 

8  Brunner,  op.  cit.  i.  313;  Schroder,  op.  cit.  239.  Edited  by  Merkel  in 
M.  G.  This  is  now  ascribed  to  the  years  739-48. 


20      /.     BEFORE    THE    NORMAN    CONQUEST 

It  is  only  in  the  Karolingian  age  that  written  law  appears 
among  the  northern  and  eastern  folks  of  Germany,  the  Fri- 
sians, the  Saxons,  the  Angli  and  Warni  of  Thuringia,  the 
Franks  of  Hamaland.1  To  a  much  later  time  must  we  regret- 
fully look  for  the  oldest  monuments  of  Scandinavian  law.2 
Only  two  of  our  "  heptarchic  "  kingdoms  leave  us  law,  Kent 
and  Wessex,  though  we  have  reason  to  believe  that  Offa  the 
Mercian  (ob.  796)  legislated.8  Even  Northumbria,  Bede's 
Northumbria,  which  was  a  bright  spot  in  a  dark  world, 
bequeaths  no  dooms.  The  impulse  of  Roman  example  soon 
wore  out.  When  once  a  race  has  its  Lex,  its  aspirations  seem 
to  be  satisfied.  About  the  year  900  Alfred  speaks  as  though 
Offa  (circ.  800),  Ine  (circ.  700),  JEthelbert  (circ.  600)  had 
left  him  little  to  do.  Rarely  upon  the  mainland  was  there 
any  authoritative  revision  of  the  ancient  Leges,  though 
transcribers  sometimes  modified  them  to  suit  changed  times, 
and  by  so  doing  have  perplexed  the  task  of  modern  historians. 
Only  among  the  Lombards,  who  from  the  first,  despite  their 
savagery,  seem  to  show  something  that  is  like  a  genius  for 
law,4  was  there  steadily  progressive  legislation.  Grimwald 
(668),  Liutprand  (713-35),  Ratchis  (746),  and  Aistulf 
(755)  added  to  the  edict  of  Rothari.  Not  by  abandoning, 
but  by  developing  their  own  ancient  rules,  the  Lombards  were 
training  themselves  to  be  the  interpreters  and  in  some  sort 
the  heirs  of  the  Roman  prudent es. 

As  the  Frankish  realm  expanded,  there  expanded  with  it 
a  wonderful  "  system  of  personal  laws."  6  It  was  a  system 
of  racial  laws.  The  Lex  Salica,  for  example,  was  not  the 
law  of  a  district,  it  was  the  law  of  a  race.  The  Swabian, 
wherever  he  might  be,  lived  under  his  Alamannic  law,  or,  as 
an  expressive  phrase  tells  us,  he  lived  Alamannic  law  (legem 
vivere).  So  Roman  law  was  the  law  of  the  Romani.  In  a 
famous,  if  exaggerated  sentence,  Bishop  Agobard  of  Lyons 

1  Brunner,  op.  cit  i.  340  flF.;  Schroder,  op.  cit.  240  ff.  Edited  by  v. 
Richthofen  and  Sohm  in  M.  G. 

•  K.  Maurer,  Ueberblick  iiber  die  Geschichte  der  nordgermanischen 
Rechtsquellen  in  v.  Holtzendorff,  Encyklopadie. 

1  Alfred,  Introduction,  49,  §9  (Liebermann,  Gesetze,  p.  46). 
Brunner,  op.  cit  i.  370;   Schroder,  op.  cit.  235. 

•  Brunner,  op.  cit  i.  259;   Schroder,  op.  cit  225;    Esmein,  op.  cit  57. 


1.     MAITLAND:   A    PROLOGUE  21 

has  said  that  often  five  men  would  be  walking  or  sitting  to- 
gether and  each  of  them  would  own  a  different  law.1  We 
are  now  taught  that  this  principle  is  not  primitively  Ger- 
manic. Indeed  in  England,  where  there  were  no  Romani, 
it  never  came  to  the  front,  and,  for  example,  "  the  Danelaw  " 
very  rapidly  became  the  name  for  a  tract  of  land. 2  But  in 
the  kingdoms  founded  by  Goths  and  Burgundians  the  intrud- 
ing Germans  were  only  a  small  part  of  the  population,  the 
bulk  of  which  was  Gallo-Roman,  and  the  barbarians,  at  least 
in  show,  had  made  their  entry  as  subjects  or  allies  of  the 
emperor.  It  was  natural  then  that  the  Romani  should  live 
their  old  law,  and,  as  we  have  seen,  their  rulers  were  at  pains 
to  supply  them  with  books  of  Roman  law  suitable  to  an  age 
which  would  bear  none  but  the  shortest  of  law-books.  It  is 
doubtful  whether  the  Salian  Franks  made  from  the  first  any 
similar  concession  to  the  provincials  whom  they  subdued; 
but,  as  they  spread  over  Gaul,  always  retaining  their  own 
Lex  Salica,  they  allowed  to  the  conquered  races  the  right 
that  they  claimed  for  themselves.  Their  victorious  career 
gave  the  principle  an  always  wider  scope.  At  length  they 
carried  it  with  them  into  Italy  and  into  the  very  city  of 
Rome.  It  would  seem  that  among  the  Lombards,  the  Ro- 
mani were  suffered  to  settle  their  own  disputes  by  their  own 
rules,  but  Lombard  law  prevailed  between  Roman  and  Lom- 
bard. However,  when  Charles  the  Great  vanquished  Desi- 
derius  and  made  himself  king  of  the  Lombards,  the  Frankish 
system  of  personal  law  found  a  new  field.  A  few  years 
afterwards  (800)  a  novel  Roman  empire  was  established. 
One  of  the  immediate  results  of  this  many-sided  event  was 
that  Roman  law  ceased  to  be  the  territorial  law  of  any  part 
of  the  lands  that  had  become  subject  to  the  so-called  Roman 
Emperor.  Even  in  Rome  it  was  reduced  to  the  level  of  a 
personal  or  racial  law,  while  in  northern  Italy  there  were 
many  Swabians  who  lived  Alamannic,  of  Franks  who  lived 


1  Agobardi  Opera,  Migne,  Patrol,  vol.  104,  col.  116:  "Nam  plerumque 
contingit  ut  simul  eant  -aut  sedeant  quinque  homines  et  nullus  eorum 
communem  legem  cum  altero  habeat." 

*  Stubbs,  Constit.  Hist.  i.  216.  See,  however,  Dahn,  Konige  der 
Germanen,  vii.  (3),  p.  1  ff. 


22      /.     BEFORE    THE    NORMAN    CONQUEST 

Salic  or  Ripuarian  law,  besides  the  Lombards.1  In  the  fu- 
ture the  renovatio  imperil  was  to  have  a  very  different  effect. 
If  the  Ottos  and  Henries  were  the  successors  of  Augustus, 
Constantine,  and  Justinian,  then  Code  and  Digest  were 
Kaiserrecht,  statute  law  for  the  renewed  empire.  But  some 
centuries  were  to  pass  before  this  theory  would  be  evolved, 
and  yet  other  centuries  before  it  would  practically  mould 
the  law  of  Germany.  Meanwhile  Roman  law  was  in  Rome 
itself  only  the  personal  law  of  the  Romani. 

A  system  of  personal  laws  implies  rules  by  which  a  "  con- 
flict of  laws  "  may  be  appeased,  and  of  late  years  many 
of  the  international  or  intertribal  rules  of  the  Frankish 
realm  have  been  recovered.2  We  may  see,  for  example,  that 
the  law  of  the  slain,  not  that  of  the  slayer,  fixes  the  amount 
of  the  wergild,  and  that  the  law  of  the  grantor  prescribes 
the  ceremonies  with  which  land  must  be  conveyed.  We  see 
that  legitimate  children  take  their  father's,  bastards  their 
mother's  law.  We  see  also  that  the  churches,  except  some 
which  are  of  royal  foundation,  are  deemed  to  live  Roman 
law,  and  in  Italy,  though  not  in  Frankland,  the  rule  that 
the  individual  cleric  lives  Roman  law  seems  to  have  been 
gradually  adopted.3  This  gave  the  clergy  some  interest 
in  the  old  system.  But  German  and  Roman  law  were  mak- 
ing advances  towards  each  other.  If  the  one  was  becoming 
civilized,  the  other  had  been  sadly  barbarized,  or  rather 
vulgarized.  North  of  the  Alps  the  current  Roman  law  re- 
garded Alaric's  Lex  as  its  chief  authority.  In  Italy  Jus- 
tinian's Institutes  and  Code  and  Julian's  epitome  of  the 
Novels  were  known,  and  someone  may  sometimes  have  opened 
a  copy  of  the  Digest.  But  everywhere  the  law  administered 
among  the  Romani  seems  to  have  been  in  the  main  a  tradi- 
tional, customary  law  which  paid  little  heed  to  written  texts. 
It  was,  we  are  told,  ein  romisches  Vulgarrecht,  which  stood 
to  pure  Roman  law  in  the  same  relation  as  that  in  which 
the  vulgar  Latin  or  Romance  that  people  talked  stood  to  the 
literary  language.4  Not  a  few  of  the  rules  and  ideas  which 


• 

1  Brunner,  op.  cit.  i.  260.       *  Ibid.  261  ff.   • 

1  Brunner,  op.  cit.  i.  269;  Loning,  op.  cit  ii.  284. 

*  Brunner,  op.  cit  i.  255. 


1.     MAITLAND:    A    PROLOGUE  23 

were  generally  prevalent  in  the  West  had  their  source  in  this 
low  Roman  law.  In  it  starts  the  history  of  modern  convey- 
ancing. The  Anglo-Saxon  "  land-book  "  is  of  Italian  ori- 
gin.1 That  England  produces  no  formulary  books,  no  books 
of  "  precedents  in  conveyancing,"  such  as  those  which  in 
considerable  numbers  were  compiled  in  Frankland,2  is  one  of 
the  many  signs  that  even  this  low  Roman  law  had  no  home 
here ;  but  neither  did  our  forefathers  talk  low  Latin. 

In  the  British  India  of  to-day  we  may  see,  and  on  a  grand 
scale,  what  might  well  be  called  a  system  of  personal  laws, 
of  racial  laws3  If  we  compared  it  with  the  Prankish,  one 
picturesque  element  would  be  wanting.  Suppose  that  among 
the  native  races  there  was  one  possessed  of  an  old  law-book, 
too  good  for  it,  too  good  for  us,  which  gradually,  as  men 
studied  it  afresh,  would  begin  to  tell  of  a  very  ancient  but 
eternally  modern  civilization  and  of  a  skilful  jurisprudence 
which  the  lawyers  of  the  ruling  race  would  some  day  make 
their  model.  This  romance  of  history  will  not  repeat  itself. 

During  the  golden  age  of  the  Frankish  supremacy,  the 
age  which  closely  centres  round  the  year  800,  there  was  a 
good  deal  of  definite  legislation:  much  more  than  there 
was  to  be  in  the  bad  time  that  was  coming.  The  king  or 
emperor  issued  capitularies  (capitula).*  Within  a  sphere 
which  can  not  be  readily  defined  he  exercised  a  power  of 
laying  commands  upon  all  his  subjects,  and  so  of  making 
new  territorial  law  for  his  whole  realm  or  any  part  thereof; 
but  in  principle  any  change  in  the  law  of  one  of  the  folks 
would  require  that  folk's  consent.  %  A  superstructure  of 
capitularies  might  be  reared,  but  the  Lex  of  a  folk  was 
not  easily  alterable.  In  1827  Ansegis,  Abbot  of  St.  Wan- 
drille,  collected  some  of  the  capitularies  into  four  books.5 
His  work  seems  to  have  found  general  acceptance,  though 
it  shows  that  many  capitularies  were  speedily  forgotten  and 

1  B  runner,  Zur  Rechtsgeschichte  der  romischen  und  germanischen 
Urkunde,  i.  187. 

1  Brunner,  D.  R.  G.  i.  401 ;  Schroder,  op.  cit.  254.  Edited  in  M.  G. 
by  Zeumer;  also  by  E.  de  Roziere,  Recueil  general  des  formules. 

8  The  comparison  has  occurred  to  M.  Esmein,  op.  cit.  56. 

*  Brunner,  op  cit.  i.  374;  Schroder,  op.  cit.  247;  Esmein,  op.  cit.  116. 
Edited  in  M.  G.'by  Boretius  and  Krause;  previously  by  Pertz. 

8  Brunner,  op.  cit.  i.  382;   Schroder,  op.  cit.  251;   Esmein,  op.  cit.  117. 


24     /•     BEFORE    THE    NORMAN    CONQUEST 

that  much  of  the  Karolingian  legislation  had  failed  to  pro- 
duce a  permanent  effect.  Those  fratricidal  wars  were  begin- 
ning. The  legal  products  which  are  to  be  characteristic 
of  this  unhappy  age  are  not  genuine  laws;  they  are  the 
forged  capitularies  of  Benedict  the  Levite  and  the  false 
decretals  of  the  Pseudo-Isidore. 

Slowly  and  by  obscure  processes  a  great  mass  of  ecclesi- 
astical law  had  been  forming  itself.  'It  rolled,  if  we  may 
so  speak,  from  country  to  country  and  took  up  new  matter 
into  itself  as  it  went,  for  bishop  borrowed  from  bishop  and 
transcriber  from  transcriber.  Oriental,  African,  Spanish, 
Gallican  canons  were  collected  into  the  same  book,  and  the 
decretal  letters  of  later  were  added  to  those  of  earlier  popes. 
Of  the  Dionysiana  we  have  already  spoken.  Another  cele- 
brated collection  seems  to  have  taken  shape  in  the  Spain  of 
the  seventh  century;  it  has  been  known  as  the  Hispana  or 
Isidoriana,1  for  without  sufficient  warrant  it  has  been  attrib- 
uted to  that  St.  Isidore  of  Seville  (ob.  636),  whose  Origines  2 
served  as  an  encyclopaedia  of  jurisprudence  and  all  other 
sciences.  The  Hispana,  made  it  sway  into  France,  and  it 
seems  to  have  already  comprised  some  spurious  documents 
before  it  came  to  the  hands  of  the  most  illustrious  of  all 
forgers. 

Then  out  of  the  depth  of  the  ninth  century  emerged  a 
book  which  was  to  give  law  to  mankind  for  a  long  time  to 
come.  Its  core  was  the  Hispana;  but  into  it  there  had  been 
foisted,  besides  other  forgeries,  some  sixty  decretals  pro- 
fessing to  come  from  the  very  earliest  successors  of  St.  Peter. 
The  compiler  called  himself  Isidorus  Mercator;  he  seems 
to  have  tried  to  personate  Isidore  of  Seville.  Many  guesses 
have  been  made  as  to  his  name  and  time  and  home.  It  seems 
certain  that  he  did  his  work  in  Frankland  and  near  the 
middle  of  the  ninth  century.  He  has  been  sought  as  far 
west  as  le  Mans,  but  suspicion  hangs  thickest  over  the  church 

1  Maassen,  op.  cit  i.  667  ff.;  Tardif,  op.  cit.  117.  Printed  in  Migne, 
Patrol,  vol.  84. 

*  For  the  Roman  law  of  the  Origines,  see  Conrat,  op.  cit.  i.  150.  At 
first  or  second  hand  this  work  was  used  by  the  author  of  our  Legei 
Henrici..  That  the  learned  Isidore  knew  nothing  of  Justinian's  books 
seems  to  be  proved,  and  this  shows  that  they  were  not  current  in  Spain. 


1.     M  AIT  LAND:   A    PROLOGUE  25 

of  Reims.  The  false  decretals  are  elaborate  mosaics  made 
up  out  of  phrases  from  the  bible,  the  fathers,  genuine  canons, 
genuine  decretals,  the  West  Goth's  Roman  law-book;  but 
all  these  materials,  wherever  collected,  are  so  arranged  as  to 
establish  a  few  great  principles:  the  grandeur  and  super- 
human origin  of  ecclesiastical  power,  the  sacrosanctity  of 
the  persons  and  the  property  of  bishops,  and,  though  this  is 
not  so  prominent,  the  supremacy  of  the  bishop  of  Rome. 
Episcopal  rights  are  to  be  maintained  against  the  chore- 
piscopi,  against  the  metropolitans,  and  against  the  secular 
power.  Above  all  (and  this  is  the  burden  of  the  song),  no 
accusation  can  be  brought  against  a  bishop  so  long  as  he  is 
despoiled  of  his  see:  Spoliatus  eptscopus  ante  omnia  debet 
restitui. 

Closely  connected  with  this  fraud  was  another.  Someone 
who  called  himself  a  deacon  of  the  church  of  Mainz  and 
gave  his  name  as  Benedict,  added  to  the  four  books  of  capit- 
ularies, which  Ansegis  had  published,  three  other  books  con- 
taining would-be,  but  false,  capitularies,  which  had  the  same 
bent  as  the  decretals  concocted  by  the  Pseudo-Isidore. 
These  are  not  the  only,  but  they  are  the  most  famous  mani- 
festations of  the  lying  spirit  which  had  seized  the  Frankish 
clergy.  The  Isidorian  forgeries  were  soon  accepted  at  Rome. 

The  popes  profited  by  documents  which  taught  that  ever 
since  the  apostolic  age  the  bishops  of  Rome  had  been  declar- 
ing, or  even  making,  law  for  the  universal  church.  On  this 
rock  or  on  this  sand  a  lofty  edifice  was  reared.1 

And  now  for  the  greater  part  of  the  Continent  comes  the 
time  whe5*!  ecclesiastical  law  is  the  only  sort  of  law  that  is 
visibly  growing.  The  stream  of  capitularies  ceased  to  flow ; 
there  was  none  to  legislate;  the  Frankish  monarchy  was 
going  to  wreck  and  ruin  ;  feudalism  was  triumphant.  Sacer- 
dotalism also  was  triumphant,  and  its  victories  were  closely 
connected  with  those  of  feudalism.  The  clergy  had  long 
been  striving  to  place  themselves  beyond  the  reach  of  the 
state's  tribunals.  The  dramatic  struggle  between  Henry  II 

1  The  Decretales  Pseudo-Isidorianae  were  edited  by  Hinschius  in 
1863.  See  also  Tardif,  op.  cit.  133  ff.;  Conrat,  op.  cit.  i.  299;  Brunner, 
op.  cit.  i.  384. 


26     /.     BEFORE    THE    NORMAN    CONQUEST 

and  Beckct  has  a  long  Frankish  prologue.1  Some  conces- 
sions had  been  won  from  the  Merovingians ;  but  still  Charles 
the  Great  had  been  supreme  over  all  persons  and  in  all  causes. 
Though  his  realm  fell  asunder,  the  churches  were  united,  and 
united  by  a  principle  that  claimed  a  divine  origin.  They 
were  rapidly  evolving  law  which  was  in  course  of  time  to 
be  the  written  law  of  an  universal  and  theocratic  monarchy. 
The  mass,  now  swollen  by  the  Isidorian  forgeries,  still  rolled 
from  diocese  to  diocese,  taking  up  new  matter  into  itelf. 
It  became  always  more  lawyerly  in  form  and  texture  as  it 
appropriated  sentences  from  the  Rorrian  law-books  and  made 
itself  the  law  of  the  only  courts  to  which  the  clergy  would 
yield  obedience.  Nor  was  it  above  borrowing  from  Germanic 
law,  for  thence  it  took  its  probative  processes,  the  oath  with 
oath-helpers  and  the  ordeal  or  judgment  of  God.  Among 
the  many  compilers  of  manuals  of  church  law  three  are  espe- 
cially famous:  Regino,  abbot  of  Priim  (906-915)  ;2  Burch- 
ard,  bishop  of  Worms  (1012-1023)  ;8  and  Ivo,  bishop  of 
Chartres  (ob.  1117).4  They  and  many  others  prepared  the 
way  for  Gratian,  the  maker  of  the  church's  Digest,  and 
events  were  deciding  that  the  church  should  also  have  a 
Code  and  abundant  Novels.  In  an  evil  day  for  themselves 
the  German  kings  took  the  papacy  from  the  mire  into  which 
it  had  fallen,  and  soon  the  work  of  issuing  decretals  was 
resumed  with  new  vigour.  At  the  date  of  the  Norman  Con- 
quest the  flow  of  these  edicts  was  becoming  rapid. 

Historians  of  French  and  German  law  find  that  a  well- 
marked  period  is  thrust  upon  them.  The  age  of  the  folk- 
laws  and  the  capitularies,  "  the  Frankish  time,"  -they  can 
restore.  Much  indeed  is  dark  and  disputable;  but  much 
has  been  made  plain  during  the  last  thirty  years  by  their 
unwearying  labour.  There  is  no  lack  of  materials,  and  the 
materials  are  of  a  strictly  legal  kind:  laws  and  statements 
of  law.  This  done,  they  are  compelled  rapidly  to  pass 
through  several  centuries  to  a  new  point  of  view.  They 

1  Hinschius,  op.  cit.  iv.  849  ff. 

1  Tardif,  op.  cit.  162.  Printed  in  Migne,  Patrol,  vol.  132;  also  edited 
by  Wasserschleben,  1&40. 

•  Ibid.  164.    Printed  in  Migne,  Patrol,  vol.  140. 

•  Ibid.  170.    Printed  in  Migne,  Patrol.  voL  161. 


1.     MAITLAND:    A    PROLOGUE  27 

take  their  stand  in  the  thirteenth  among  law-books  which 
have  the  treatises  of  Glanvill  and  Bracton  for  their  English 
equivalents.  It  is  then  a  new  world  that  they  paint  for 
us.  To  connect  this  new  order  with  the  old,  to  make  the 
world  of  "  the  classical  feudalism  " l  grow  out  of  the  world 
of  the  folk-laws  is  a  task  which  is  being  slowly  accomplished 
by  skilful  hands ;  but  it  is  difficult,  for,  though  materials  are 
not  wanting,  they  are  not  of  a  strictly  legal  kind;  they  are 
not  laws,  nor  law-books,  nor  statements  of  law.  The  inter- 
vening, the  dark  age,  has  been  called  "  the  diplomatic  age," 
whereby  is  meant  that  its  law  must  be  hazardously  inferred 
from  diplomata,  from  charters,  from  conveyances,  from 
privileges  accorded  to  particular  churches  or  particular 
towns.  No  one  legislates.  The  French  historian  will  tell 
us  that  the  last  capitularies  which  bear  the-  character  of 
general  laws  are  issued  by  Carloman  II  in  884,  and  that 
the  first  legislative  ordonnance  is  issued  by  Louis  VII  in 
1155.2  Germany  and  France  were  coming  to  the  birth,  and 
the  agony  was  long.  Long  it  was  questionable  whether  the 
western  world  would  not  be  overwhelmed  by  Northmen  and 
Saracens  and  Magyars ;  perhaps  we  are  right  in  saying 
that  it  was  saved  by  feudalism.8  Meanwhile  the  innermost 
texture  of  human  society  was  being  changed ;  local  customs 
were  issuing  from  and  then  consuming  the  old  racial  laws. 

Strangely  different,  at  least  upon  its  surface,  is  our  Eng- 
lish story.  The  age  of  the  capitularies  (for  such  we  well 
might  call  it)  begins  with  us  just  when  it  has  come  to  its 
end  upon  the  Continent.  We  have  had  some  written  laws 
from  the  newly  converted  Kent  and  Wessex  of  the  seventh 
century.  We  have  heard  that  in  the  day  of  Mercia's  great- 
ness Off  a  (ob.  796),  influenced  perhaps  by  the  example  of 
Charles  the  Great,  had  published  laws.  These  we  have  lost ; 
but  we  have  no  reason  to  fear  that  we  have  lost  much  else. 
Even  Egbert  did  not  legislate.  The  silence  was  broken  by 

1  We  borrow  ftodalitt  classique  from  M.  Flach:  Les  origines  de 
1'ancienne  France,  ii.  551. 

*  Esmein,  op.  cit.  487-8;    Viollet,  op.  cit.  152.     Schroder,  op.  cit.  624: 
MVom  10.  bis  12.  Jahrhundert  ruhte   die  Gesetzgebung   fast  ganz  .  .  . 
Es  war  die  Zeit  der  Alleinherrschaft  des  Gewohnheitsrechte." 

*  Oman,  The  Dark  Ages,  511. 


28      /.     BEFORE    THE    NORMAN    CONQUEST 

Alfred,  and  then  we  have  laws  from  almost  every  king: 
from  Edward,  /Ethelstan,  Edmund,  Edgar,  /Ethelred,  and 
Cnut.  The  age  of  the  capitularies  begins  with  Alfred,  and 
in  some  sort  it  never  ends,  for  William  the  Conqueror  and 
Henry  I  take  up  the  tale.1  Whether  in  the  days  of  the  Con- 
fessor, whom  a  perverse,  though  explicable,  tradition  hon- 
oured as  a  pre-eminent  lawgiver,  we  were  not  on  the  verge 
of  an  age  without  legislation,  an  age  which  would  but  too 
faithfully  reproduce  some  bad  features  of  the  Frankish 
decadence,  is  a  question  that  is  not  easily  answered.  How- 
beit,  Cnut  had  published  in  England  a  body  of  laws  which, 
if  regard  be  had  to  its  date,  must  be  called  a  handsome  code. 
If  he  is  not  the  greatest  legislator  of  the  eleventh  century, 
we  must  go  as  far  as  Barcelona  to  find  his  peer.2  He  had 
been  to  Rome;  he  had  seen  an  emperor  crowned  by  a  pope; 
but  it  was  not  outside  England  that  he  learnt  to  legislate. 
He  followed  a  fashion  set  by  Alfred.  We  might  easily  exag- 
gerate both  the  amount  of  new  matter  that  was  contained 
in  these  English  capitularies  and  the  amount  of  information 
that  they  give  us;  but  the  mere  fact  that  Alfred  sets,  and 
that  his  successors,  and  among  them  the  conquering  Dane, 
maintain,  a  fashion  of  legislating,  is  of  great  importance. 
The  Norman  subdues,  or,  as  he  says,  inherits  a  kingdom  in 
which  a  king  is  expected  to  publish  laws. 

Were  we  to  discuss  the  causes  of  this  early  divergence 
of  English  from  continental  history  we  might  wander  far. 
In  the  first  place,  we  should  have  to  remember  the  small  size, 
the  plain  surface,  the  definite  boundary  of  our  country. 
This  thought  indeed  must  often  recur  to  us  in  the  course 
of  our  work :  England  is  small :  it  can  be  governed  by  uni- 
form law:  it  seems  to  invite  general  legislation.  Also  we 

1  As  to  the  close  likeness  between  the  English  dooms  and  the  Frankish 
capitularies,  see  Stubbs,  Const.  Hist.  i.  223.  We  might  easily  suppose 
direct  imitation,  were  it  not  that  much  of  the  Karolingian  system  was  in 
ruins  before  Alfred  began  his  work. 

*  The  Usatici  Barchinonensis  Patriae  (printed  by  Giraud,  Histoire 
du  droit  francais,  ii.  465  ff.)  are  ascribed  to  Raymond  Berengar  I  and 
to  the  year  1068  or  thereabouts.  But  how  large  a  part  of  them  really 
comes  from  him  is  a  disputable  question.  See  Conrat,  op.  cit.  i.  467; 
Picker,  Mittheilungen  des  Instituts  fur  bsterreichische  Geschichtsfor- 
schung,  1888,  ii.  p.  236. 


1.     MAITLAND:   A    PROLOGUE  29 

should  notice  that  the  kingship  of  England,  when  once  it 
exists,  preserves  its  unity:  it  is  not  partitioned  among 
brothers  and  cousins.  Moreover  we  might  find  ourselves  say- 
ing that  the  Northmen  were  so  victorious  in  their  assaults 
on  our  island  that  they  did  less  harm  here  than  elsewhere. 
In  the  end  it  was  better  that  they  should  conquer  a  tract, 
settle  in  villages  and  call  the  lands  by  their  own  names,  than 
that  the  state  should  go  to  pieces  in  the  act  of  repelling 
their  inroads.  Then,  again,  it  would  not  escape  us  that  a 
close  and  confused  union  between  church  and  state  prevented 
the  development  of  a  body  of  distinctively  ecclesiastical  law 
which  would  stand  in  contrast  with,  if  not  in  opposition  to, 
the  law  of  the  land.1  Such  power  had  the  bishops  in  all 
public  affairs,  that  they  had  little  to  gain  from  decretals 
forged  or  genuine,2  indeed  yEthelred's  laws  are  apt  to  be- 
come mere  sermons  preached  to  a  disobedient  folk.  How- 
ever, we  are  here  but  registering  the  fact  that  the  age  of 
capitularies,  which  was  begun  by  Alfred,  does  not  end.  The 
English  king,  be  he  weak  like  JEthelred  or  strong  like  Cnut, 
is  expected  to  publish  laws. 

But  Italy  was  to  be  for  a  while  the  focus  of  the  whole 
world's  legal  history.  For  one  thing,  the  thread  of  legis- 
lation was  never  quite  broken  there.  Capitularies  or  statutes  . 
which  enact  territorial  law  came  from  Karolingian  emperors 
and  from  Karolingian  kings  of  Italy,  and  then  from  the 
Ottos  and  later  German  kings.  But  what  is  more  important 
is  that  the  old  Lombard  law  showed  a  marvellous  vitality 
and  a  capacity  of  being  elaborated  into  a  reasonable  and 
progressive  system.  Lombardy  was  the  country  in  which 
the  principle  of  personal  law  struck  its  deepest  roots.  Be- 
sides Lombards  and  Romani,  there  were  many  Franks  and 
Swabians  who  transmitted  their  law  from  father  to  son.  It 
was  long  before  the  old  question  Qua  lege  vivis?  lost  its 
importance.  The  "  conflict  of  laws  "  seems  to  have  favoured 
the  growth  of  a  mediating  and  instructed  jurisprudence. 

1  Stubbs,  Const.  Hist.  i.  263:    "There  are  few  if  any  records  of  coun- 
cils distinctly  ecclesiastical  held  during  the  tenth  century  in  England." 

2  There  seem  to  be  traces  of  the  Prankish  forgeries  in  the  Worcester 
book  described  by  Miss  Bateson,  E.  H.  R.  x.  712  ff.    English  ecclesiastics 
were  borrowing,  and  it  is  unlikely  that  they  escaped  contamination. 


30      /.     BEFORE    THE    NORMAN    CONQUEST 

Then  at  Pavia,  in  the  first  half  of  the  eleventh  century,  a 
law-school  had  arisen.  In  it  men  were  endeavouring  to  sys- 
tematize by  gloss  and  comment  the  ancient  Lombard  statutes 
of  Rothari  and  his  successors.  The  heads  of  the  school  were 
often  employed  as  royal  justices  (indices  palatini)  ;  their 
names  and  their  opinions  were  treasured  by  admiring  pupils. 
From  out  this  school  came  Lanfranc.  Thus  a  body  of  law, 
which  though  it  had  from  the  first  been  more  neatly  ex- 
pressed than,  was  in  its  substance  strikingly  like,  our  own 
old  dooms,  became  the  subject  of  continuous  and  professional 
study.  The  influence  of  reviving  Roman  law  is  not  to  be 
ignored.  These  Lombardists  knew  their  Institutes,  and, 
before  the  eleventh  century  was  at  an  end,  the  doctrine  that 
Roman  law  was  a  subsidiary  common  law  for  all  mankind 
(lex  omnium  generalis)  was  gaining  ground  among  them; 
but  still  the  law  upon  which  they  worked  was  the  old  Ger- 
manic law  of  the  Lombard  race.  Pavia  handed  the  lamp 
to  Bologna,  Lombardy  to  the  Romagna.1 

As  to  the  more  or  less  that  was  known  of  the  ancient 
Roman  texts  there  has  been  learned  and  lively  controversy 
in  these  last  years.2  But,  even  if  we  grant  to  the  cham- 
pions of  continuity  all  thai-  they  ask,  the  sum  will  seem  small 
until  the  eleventh  century  is  reached.  That  large  masses 
of  men  in  Italy  and  southern  France  had  Roman  law  for 
their  personal  law  is  beyond  doubt.  Also  it  is  certain  that 
Justinian's  Institutes  and  Code  and  Julian's  Epitome  of  the 
Novels  were  beginning  to  spread  outside  Italy.  There  are 
questions  still  to  be  solved  about  the  date  and  domicile  of 
various  small  collections  of  Roman  rules  which  some  regard 

1  Boretius,  Preface  to  edition  of  Liber  legis  Langobardorum,  in  M. 
G.;  Brunner,  op.  cit.  i.  387  IF.;  Picker,  Forschungen  zur  Reichs-  u. 
Rechtsgeschichte  Italiens,  iii.  44  if.,  139  ff.;  Conrat,  op.  cit.  i.  393  ff. 

_*It  is  well  summed  up  for  English  readers  by  Rashdall,  Universities 
of  Europe,  i.  89  ff.  The  chief  advocate  of  a  maximum  of  knowledge  has 
been  Dr.  Hermann  Fitting  in  Juristische  Schriften  des  friiheren 
Mittelalters,  1876,  Die  Anfange  der  Rechtsschule  zu  Bologna,  1888,  and 
elsewhere.  He  has  recently  edited  a  Summa  Codicis  (1894)  and  some 
Quaestiones  de  iuris  subtilitatibus,  both  of  which  he  ascribes  to  Irnerius. 
See  also  Pescatore,  Die  Glossen  des  Irnerius,  1888;  Mommsen,  Preface 
to  two-volume  edition  of  the  Digest;  Flach,  Etudes  critiques  sur  1'his- 
taire  du  droit  remain,  1890;  Besta,  L'Opera  d'Irnerio,  1896;  Ficker, 
op.  cit.  vol.  iii,  and  Conrat,  op.  cit  passim. 


1.     MAITLAND:   A    PROLOGUE  31 

as  older  than  or  uninfluenced  by  the  work  of  the  Bolognese 
glossators.  One  critic  discovers  evanescent  traces  of  a  school 
of  law  at  Rome  or  at  Ravenna  which  others  cannot  see.  The 
current  instruction  of  boys  in  grammar  and  rhetoric  in- 
volved some  discussion  of  legal  terms.  Definitions  of  lex 
and  ius  and  so  forth  were  learnt  by  heart ;  little  catechisms 
were  compiled ;  *  but  of  anything  that  we  should  dare  to 
call  an  education  in  Roman  law  there  are  few,  if  any,  indis- 
putable signs  before  the  school  of  Bologna  appears  in  the 
second  half  of  the  eleventh  century.  As  to  the  Digest,  dur- 
ing some  four  hundred  years  its  mere  existence  seems  to 
have  been  almost  unknown.  It  barely  escaped  with  its  life. 
When  men  spoke  of  "  the  pandects  "  they  meant  the  Bible.2 
The'  romantic  fable  of  the  capture  of  an  unique  copy  at  the 
siege  of  Amalfi  in  1135  has  long  been  disproved;  but,  if 
some  small  fragments  be  neglected,  all  the  extant  manu- 
scripts are  said  to  derive  from  two  copies,  one  now  lostt 
the  other  the  famous  Florentina,  written,  we  are  told,  by 
Greek  hands  in  the  sixth  or  seventh  century.  In  the  eleventh 
the  revival  began.  In  1038  Conrad  II,  the  emperor  whom 
Cnut  saw  crowned,  ordained  that  Roman  law  should  be  once 
more  the  territorial  law  of  the  city  of  Rome.3  In  1076  the 
Digest  was  cited  in  the  judgment  of  a  Tuscan  court.4  Then, 
about  1100,  Irnerius  was  teaching  at  Bologna.5 

Here,  again,  there  is  room  for  controversy.  It  is  said  that 
he  was  not  self-taught;  it  is  said  that  neither  his  theme 
nor  his  method  was  quite  new ;  it  is  said  that  he  had  a 
predecessor  at  Bologna,  one  Pepo  by  name.  All  this  may 
be  true  and  is  probable  enough:  and  yet  undoubtedly  he 
was  soon  regarded  as  the  founder  of  the  school  which  was 

^ee  E.  J.  Tardif,  Extraits  et  abr6ge"s  juridiques  des  Etymologies 
d'Isidore  de  Seville,  1896. 

'Conrat,  op.  cit.  i.  65. 

»M.  G.^Leges,  ii.  40;  Conrat,  op.  cit.  i.  62. 

4  Picker,  Forschungen,  iii.  126,  iv.  99;  Conrat,  op.  cit.  67.  Apparently 
the  most  industrious  research  has  failed  to  prove  that  between  603 
and  1076  any  one  cited  the  Digest.  The  bare  fact  that  Justinian  had 
issued  such  a  book  seems  to  have  vanished  from  memory.  *  Conrat,  op. 
cit.  i.  69. 

B  In  dated  documents  Irnerius  (his  name  seems  to  have  really  been 
Warnerius,  Guarnerius)  appears  in  1113  and  disappears  in  1125.  The 
University  of  Bologna  kept  1888  as  its  octocentenary. 


32      /.     BEFORE    THE    NORMAN    CONQUEST 

teaching  Roman  law  to  an  intently  listening  world.  We 
with  our  many  sciences  can  hardly  comprehend  the  size  of 
this  event.  The  monarchy  of  theology  over  the  intellectual 
world  was  disputed.  A  lay  science  claimed  its  rights,  its 
share  of  men's  attention.  It  was  a  science  of  civil  life  to 
be  found  in  the  human  heathen  Digest:1 

A  new  force  had  begun  to  play,  and  sooner  or  later  every 
body  of  law  in  western  Europe  felt  it.  The  challenged 
church  answered  with  Gratian's  Decretum  (circ.  1139)  and 
the  Decretals  of  Gregory  IX  (1234).  The  canonist  emu- 
lated the  civilian,  and  for  a  long  while  maintained  in  the 
field  of  jurisprudence  what  seemed  to  be  an  equal  combat. 
Unequal  it  was  in  truth.  The  Decretum  is  sad  stuff  when 
set  beside  the  Digest,  and  the  study  of  Roman  law  never  'dies. 
When  it  seems  to  be  dying  it  always  returns  to  the  texts 
and  is  born  anew.  It  is  not  for  us  here  to  speak  of  its 
new  birth  in  the  France  of  the  sixteenth  or  in  the  Germany 
of  the  nineteenth  century ;  but  its  new  birth  in  the  Italy 
of  the  eleventh  and  twelfth  concerns  us  nearly.  Transient 
indeed  but  all-important  was  the  influence  of  the  Bologna 
of  Irnerius  and  Gratian  upon  the  form,  and  therefore  upon 
the  substance,  of  our  English  law.  The  theoretical  conti- 
nuity or  "  translation "  of  the  empire,  which  secured  for 
Justinian's  books  their  hold  upon  Italy,  and,  though  after 
a  wide  interval,  upon  Germany  also,  counted  for  little  in 
France  or  in  England.  In  England,  again,  there  was  no 
mass  of  Romani,  of  people  who  all  along  had  been  living 
Roman  law  of  a  degenerate  and  vulgar  sort  and  who  would 
in  course  of  time  be  taught  to  look  for  their  law  to  Code 
and  Digest.  Also  there  was  no  need  in  England  for  that 
rcconstitution  de  V unite  nationale  which  fills  a  large  space 
in  schemes  of  French  history,  and  in  which,  for  good  and  ill, 
the  Roman  texts  gave  their  powerful  aid  to  the  centripetal 
and  monarchical  forces.  In  England  the  new  learning  found 

1  Esmein,  pp.  cit.  347:  "  Une  science  nouvelle  naquit,  independante  et 
lalque,  la  science  de  la  societ6  civile,  telle  que  1'avaient  d£gagee  les 
Remains,  et  qui  pouvait  passer  pour  le  chef-d'oeuvre  de  la  sagesse 
humaine  ...  II  en  resulta  qu'a  c&t£  du  theologien  se  pla?a  le  legiste 
qui  avail,  comme  lui,  ses  principes  et  ses  textes,  et  qui  lui  dispute 
la  direction  des  esprite  avides  de  savoir." 


1.    MAITLAND:   A    PROLOGUE  33 

a  small,  well  conquered,  much  governed  kingdom,  a  strong, 
a  legislating  kingship.  It  came  to  us  soon ;  it  taught  us 
much;  and  then  there  was  healthy  resistance  to  foreign 
dogma.  But  all  this  we  shall  see  in  the  sequel. 


«.     THE   DEVELOPMENT   OF  TEUTONIC   LAW1 
BY  EDWARD  JENKS  2 

THE  epoch  in  which  the  states  of  Western  Europe  are  now 
living,  has  a  history  and  a  unity  of  its  own,  and  is  pecul- 
iarly suitable  as  material  for  the  study  we  are  about  to 
undertake.  _It*is  our  own  epoch,  we  know  more  about  it  than 
we  know  of  any  other,  it  appeals  more  powerfully  to  us  than 
any  other,  we  have  inherited  its  traditions,  we  breathe  its 
ideas.  Dispute  as  we  may  about  the  details,  we  know  that  the 
Roman  Empire  fell  as  a  political  power,  that  the  sceptre  jof 
Western  Europe  passed  from  the  Roman  to  the  Teuton.  That 
the  influence  of  Rome  long  overshadowed  the  new  forces  which 
took  her  place,  may  be  readily  admitted  ;  the  Teuton  did  not 
begin  to  write  history  on  a  clean  sheet.  But  the  child  who 
starts  by  copying  his  letters,  in  time  proceeds  to  make  letters 
of  his  own;  and  if  Clovis  and  his  successors  were  fond  of 
wearing  the  cast  off  clothes  of  the  Caesars,  they  none  the  less 
set  a  new  fashion  of  wearing  them.  Nowhere  is  this  truth 
more  abundantly  clear  than  in  the  history  of  Teutonic  law. 
Alongside  of  the  elaborate  system  which  generations  of  Roman 

'This  passage  is  extracted  from  "Law  and  Politics  in  the  Middle 
Ages,"  1898,  cc.  I,  II,  pp.  6-55,  and  Appendix,  pp.  321-326  (New  York: 
Henry  Holt  &  Co.). 

'Principal  and  Director  of  Legal  Studies  of  the  Law  Society  of 
London.  B.  A.,  LL.  B.  King's  College,  Cambridge;  M.  A.  Oxford  and 
Cambridge;  D.  C.  L.  Oxford;  Lecturer  at  Pembroke  and  Jesus  Col- 
leges, Cambridge,  1888-1889;  Dean  of  the  Faculty  of  Law,  Melbourne, 

19-1892;    Professor   of   Law   in    University   College,   Liverpool,   1892- 

96;  Reader  in  English  Law,  and  Lecturer  at  Balliol  College,  Oxford, 
1896-1903. 

Other    Publications:     Constitutional    Experiments    of    the    Common- 

91;    The   Doctrine  of   Consideration   in   English   Law,   1893; 

The  Government  of  Victoria,  Australia,  1893;    History  of  the  Austra- 

5ian    Colonies,    1896;     Outline    of    English    Local    Government,    1895; 


, 

T  Odf™n  ^nd  Law'  1899;    A  Short  History  of  Politics,  1902;    Edward 
I,  1902;    Parliamentary  England,  1903. 


84 


0.     JENKS:    TEUTONIC    LAW  35 

jurists  had  expounded,  and  Imperial  legislators  fashioned  into 
shape,  there  grew  up,*under  totally  different  circumstances,  a 
group  of  kindred  Teutonic  laws,  at  first  utterly  incoherent, 
gradually  assuming  order  and  system.  It  is  in  these  that  we 
trace  the  growth  of  the  idea  of  Law. 

The  oldest  monuments  of  Teutonic  legal  history  have 
received  the  name  of  Leges  Barbarorum.  But  the  title  is  apt 
to  be  misleading.  Even  in  the  Frank  kingdoms,  where  the 
conscious  imitation  of  Rome  was  strongest,  there  is  at  first  no 
attempt  at  legislation  in  the  modern  sense.  Beyond  doubt  the 
Leges  were,  in  most  cases,  the  work  of  kings,  to  the  extent 
that  they  were  drawn  up  by  royal  direction,  and  published 
under  royal  auspices.  Quite  possibly,  too,  the  kings  who 
collected  them  took  the  opportunity  of  modifying  certain 
details  during  the  process.  But  the  notion  of  the  king,  i:  e. 
the  State,  as  the  source  of  legislation,  is  yet  far  distant. 
Several  of  these  codes  profess  to  give  their  own  account  of  the 
way  in  which  they  were  drawn  up ;  and,  in  spite  of  all  the 
criticism  which  has  been  directed  against  the  more  extrava- 
gant pretensions  of  the  so-called  historical  school,  there  can  be 
little  doubt  that  these  accounts  contain  a  large  element  of 
truth.  The  famous  Lex  Salica,  the  custumal  of  the  race 
which  became  overlords  of  half  Western  Europe,  contains  a 
prologue  which,  though  doubtless  of  later  date  than  the  first 
redaction  of  the  custumal  itself,  is  yet  of  great  antiquity,  and 
which  describes  the  collection  of  the  origines  causarwm  by  four 
chosen  men  (whose  names  and  districts  are  given)  after 
lengthy  discussions  with  the  judices,  or  presidents  of  the  local 
assemblies.  The  first  Burgundian  code  (early  sixth  century), 
known  as  the  Lex  Gundobada,  describes  itself  as  a  "  defini- 
tion," and  is  confirmed  by  the  seals  of  thirty-one  counts.  The 
oldest  code  of  the  Alamanni,  no  longer  extant  in  a  complete 
form,  is  known  by  the  suggestive  title  of  Pactus  or  Agree- 
ment ;  while  the  extant  edition,  dating  from  the  early  years  of 
the  eighth  century,  professes  to  have  been  drawn  up  by  the 
king,  with  the  aid  of  thirty-three  bishops,  thirty-four  dukes, 
seventy-two  counts,  and  a  great  multitude  of  people.  The 
Anglo-Saxon  kings  describe  themselves  as  "  setting " 
(faction),  "fastening"  (gefcestnode),  or  "securing" 


36   /.  BEFORE  THE  NORMAN  CONQUEST 

(getrymcdc)  their  laws.1  Owing  to  the  scantiness  of  external 
evidence,  it  is  impossible  to  assert  with  confidence  the  precise 
character  of  the  process  adopted  in  the  earliest  times.  But 
a  curious  story  preserved  by  the  Saxon  annalist  Widukind  2 
shows  that,  even  in  the  tenth  century,  and  under  so  powerful 
a  monarch  as  Otto  the  Great,  Law  was  regarded  as  a  truth  to 
be  discovered,  not  as  a  command  to  be  imposed.  The  question 
was,  whether  the  children  of  a  deceased  person  ought  to  share 
in  the  inheritance  of  their  grandfather,  along  with  their 
uncles.  It  was  proposed  that  the  matter  should  be  examined 
by  a  general  assembly  convoked  for  the  purpose.  But  the  king 
was  unwilling  that  a  question  concerning  the  difference  of  laws 
should  be  settled  by  an  appeal  to  numbers.  So  he  ordered  a 
battle  by  champions ;  and,  victory  declaring  itself  for  the 
party  which  represented  the  claims  of  the  grandchildren,  the 
law  was  solemnly  declared  in  that  sense.  The  original  proposal 
would  have  been  an  appeal  to  custom ;  but  the  plan  actually 
adopted  reveals  the  thought,  that  even  custom  is  not  conclusive 
proof,  that  Law  is  a  thing  which  exists  independently  of 
human  agency,  and  is  discoverable  only  in  the  last  resort  by 
an  appeal  to  supernatural  authority. 

There  is  one  circumstance  connected  with  the  compilation 
of  the  Laws  of  the  Barbarians  which  is  specially  suggestive 
of  influences  leading  to  the  developement  of  rudimentary  ideas 
of  Law.  By  far  the  most  important  of  these  codes  are 
directly  connected  with  migrations  and  conquests.  The  Teu- 
tonic settlements  west  of  the  Rhine  were  the  first  to  produce 
compilations  of  Teutonic  law,  and  it  may  be,  and  indeed  is, 
often  asserted,  that  this  fact  is  due  to  the  example  of  the  Code 
of  Theodosius,  the  great  monument  of  Roman  jurisprudence 
which  confronted  the  invaders  of  the  Empire.  But  the  real 
epoch  of  law-producing  activity  coincides  closely  with  the  con- 
quering careers  of  Charles  Martel,  Pepin  the  Short,  and 
Charles  the  Great.  During  this  period  are  produced  the 
Laws  of  the  Alamanni,  the  Bavarians,  the  Frisians,  the 
Thuringians,  and  the  Saxons.  In  England,  the  Anglo- 
Saxon  migrations  give  rise  to  a  scanty  crop  of  laws ;  but 

1  Sohmid,  Oetetze  der  Angelsachsen,  ed  2.  ^Ethelbirt,  p.  2,  Inc.  p.  20. 
*  Widukind,  Annalet  (Mon.  Germ.,  SS.  fo.  iii.  p.  440). 


2.     JENKS:    TEUTONIC   LAW  37 

the  real  activity  comes  with  the  conquests  by  the  Danes. 
On  the  other  hand,  in  Scandinavia,  of  all  Teutonic  countries 
the  most  isolated,  the  oldest  extant  code  dates  from  the  end  of 
the  twelfth  century  or  the  beginning  of  the  thirteenth.  The 
fact  is  an  illustration  of  the  great  principle,  that  mixture  or, 
at  least,  contact  of  races  is  essential  to  progress.  The  dis- 
covery of  differences  is  needed  to  stimulate  thought  and 
produce  coherence.  Resistance  and  attack  are  alike  provoca- 
tive of  definition.  The  conqueror  wishes  to  enforce  his 
customs  upon  his  new  subjects.  He  must  needs  explain  what 
they  are.  .The  conquered  demand  the  retention  of  their 
ancient  practices.  They  are  compelled  to  formulate  their 
claims.  So  it  is  when  Charles  the  Great  conquers  Western 
Europe.  So  it  is  again  when  William  conquers  the  English, 
when  the  English  conquer  India,  when  Napoleon  conquers 
Germany. 

This  fact  will,  perhaps,  help  to  account  for  one  feature 
of  the  Leges  Barbarorum  which  has  often  puzzled  readers  of 
them.  They  omit  so  many  things  that  we  should  consider 
important ;  and  they  relate  in  minute  detail  matters  which 
seem  to  us  trivial.  But,  if  we  remember  that  the  process 
which  produced  them  was  probably  a  very  troublesome  one, 
we  shall  be  inclined  to  think  that  their  compilers  only  recorded 
what  Was  absolutely  necessary.  And  this  comprised  just 
those  points  which  the  processes  of  migration  and  conquest 
had  rendered  doubtful.  The  ancient  custom  had  received  a 
shock ;  men  doubted  how  far  some  of  its  terms  would  apply 
to  new  conditions.  Even  very  modern  systems  of  law  fre- 
quently omit  all  mention  of  rules  which  are  really  funda- 
mental. No  statute,  no  recorded  decision  of  an  English  law 
court,  says  that  a  man  may  destroy  a  chattel  which  belongs 
to  him.  Why  should  it?  No  one  doubts  the  fact.  Much 
less  does  a  primitive  code  trouble  itself  about  theoretical 
completeness.  Law  is  the  expression  of  order  and  settled 
rule;  but  it  is  none  the  less  true  that  the  law  came  because 
of  offences,  that  is,  because  of  variations  from  existing  rule. 
And  it  is  to  law-breakers,  paradox  as  it  may  sound,  that  the 
progress  of  law  is  due;  for  what  we  call  Progress  is  simply 
the  attempt  of  the  individual  to  extend  his  freedom  of  action 


38  /.  BEFORE  THE  NORMAN  CONQUEST 

beyond  those  bounds  which  have  hitherto  been  deemed  inex- 
orable. The  criminal  and  the  reformer  are  alike  law-break- 
ers. The  criminal  is  the  man  who  endeavours  to  return  to 
a  state  of  things  which  society  has  once  practised,  but  has 
condemned  as  the  result  of  experience.  The  murderer,  the 
thief,  the  bigamist,  are  unfortunate  survivals  from  a  bygone 
age.  The  reformer  is  the  man  who  advocates  what  society 
has  hitherto  deemed  unlawful,  because  it  has  not  been  tried. 
And  so,  when  we  read  our  Barbarian  Codes,  and  find  that 
they  say  a  good  deal  about  summoning  to  courts,  about  rules 
of  inheritance,  about  foul  language,  and  a  very  great  deal 
about  money  compensation  for  acts  of  violence,  we  shall 
begin  dimly  to  picture  to  ourselves  an  older  state  of  things, 
in  which  differences  of  opinion  were  settled  by  clubs  and 
spears,  in  which  (whatever  the  reason)  a  dead  man's  belong- 
ings did  not  pass  to  his  relatives,  in  which  the  most  virulent* 
abuse  was  common  pleasantry,  and  in  which  the  blood  feud, 
itself,  doubtless,  a  step  towards  better  things,  was  treated 
as  a  fine  art. 

Many  other  features  of  the  Leges  Barbarorum  deserve 
to  be  noticed ;  but  space  forbids  the  mention  of  more  than 
one.  They  are  laws  of  peoples,  not  of  places.  Even  during 
the  later  Middle  Ages,  even  in  our  own  day,  the  principle, 
that  all  persons  living  in  a  certain  place  are  subject  to  the 
law  of  that  place,  has  to  submit  to  substantial  exceptions. 
In  the  days  which  followed  the  downfall  of  the  Roman  Em- 
pire, the  principle  was  not  recognized  at  all.  The  provin- 
cials of  Gaul,  at  the  time  of  the  Teutonic  invasions,  lived 
under  a  great  and  uniform  system,  devised  by  the  jurists 
and  officials  of  the  Roman  empire,  and  embodied  in  the  Theo- 
dosian  Code  and  other  monuments.  The  invaders  had  no 
thought  of  depriving  them  of  this  privilege.  They  did  in- 
deed, in  some  cases,  publish  special  codes  for  their  Roman 
subjects ;  and  so  we  get  a  Lex  Romano,  Wmgothorum,  a  Lex 
Romano,  Burgundionum  and  (possibly)  a  Lex  Romana  Curi- 
ensis.  But  it  seems  again  probable,  that  these  compilations 
are  merely  attempts  to  settle  inevitable  conflicts  of  legal 
principles ;  and,  in  any  case,  it  is  worthy  of  notice  that  they 
are  full  of  references  to  the  Theodosian  Code,  the  Sentences 


2.     JENKS:    TEUTONIC   LAW  39 

of  Paulus,  the  Lex  Aquilia,  and  other  purely  Roman  sources.1 
Amongst  the  Teutonic  populations  of  the  north  and  east, 
the  question  of  the  provincials  would,  for  obvious  reasons, 
be  less  important;  but  the  curious  reference  in  the  Lex 
Sallca  to  the  man  qui  legem  salicam  vivit,2  seems  to  indicate 
a  similar  principle.  For  slightly  later  days,  the  matter  is  set 
at  rest  by  the  decree  of  Chlothar  II.  —  "  We  have  ordained 
that  the  conduct  of  cases  between  Romans  shall  be  decided 
by  the  Roman  Laws." 

It  is  not  to  be  supposed,  that  the  invaders  accorded  to  the 
provincials  a  principle  which  they  denied  to  themselves.  In 
truth,  it  is  somewhat  difficult  to  see  how  migratory  groups 
could  arrive  at  the  notion  of  a  lex  terras,  unless  they  were 
prepared  to  change  their  customs  with  each  migration.  A 
great  and  luminous  critic,  the  late  M.  Fustel  de  Coulanges, 
has,  indeed,  attempted  to  deny  the  occurrence  of  a  migratory 
epoch,  or  Volkerwanderung,  as  well  as  the  recognition  of 
racial  differences  by  the  barbarians.3  But,  as  the  same  learned 
historian  gives  an  excellent  account  of  at  least  a  score  of  new 
German  settlements,  hostile  or  friendly,  with  the  Empire,4 
tne  first  question  resolves  itself  into  one  of  figures;  while 
his  elaborate  attempt  to  prove  that  the  terms  Franci  and 
Romani  are  names  of  ranks  rather  than  of  races,5  would  seem, 
if  successful,  to  point  to  the  fact  that  the  Teutons  settled 
down  as  an  aristocracy  upon  the  enslaved  provincials  —  a 
doctrine  which  is  M.  Fustel's  pet  aversion.  Certain  it  is, 
that  the  barbarians  themselves  clearly  recognized  the  prin- 
ciple of  the  personality  of  laws.  The  oldest  part  of  the  Lex 
Ribuaria  (Tit.  31)  contains  the  following  conclusive  pas- 
sage :  —  "  This  also  we  determine,  that  a  Frank,  a  Burgun- 
dian,  an  Alamann,  or  in  whatever  nation  he  shall  have  dwelt, 
when  accused  in  court  in  the  Ribuarian  country,  shall  answer 
according  to  the  law  of  the  place  where  he  was  born.  And 

1  Lex  Romano  Burgundionum,  Titf  I.   (3),  IV.   (3)^V.    (2),  XIX. 
(2),  etc. 

*Lex  Salica,  Tit.  XLI.  (1). 

*  Fustel  de  Coulanges,  L'Invas'wn  Germanique,  pp.  340  and  543. 

4  Ibid.,  Bk.  II.  capp.  iv.-x. 

"  Fustel  de  Coulanges,  L'Invasion  Germanique,  pp.  340  and  543. 
(Nouvelles  Recherches,  pp.  561,  sqq.). 


40      /•     BEFORE    THE    NORMAN    CONQUEST 

if  he  be  condemned,  he  shall  bear  the  los«,  not  according 
to  Ribuarian  law,  but  according  to  his  own  law."  Doubtless, 
even  here,  we  may  see  foreshadowings  of  those  influences 
which  are  soon  to  localize  law.  Doubtless,  the  mixing  of 
races  is  rendering  genealogical  questions  difficult,  and  we 
seem  almost  to  discover  a  period  in  which  a  man  may  claim 
to  live  according  to  any  law,  may  make  any  professio  juris, 
that  he  likes,  provided  he  does  it  in  the  proper  way.  But  this 
is  only  a  concession  to  practical  difficulties.  Law  is  at  first 
as  much  personal  as  is  religion;  and  a  profession  of  law  is 
much  like  a  profession  of  faith. 

The  second  stage  in  the  history  of  Teutonic  Law  is,  appar- 
ently, very  modern  in  character.  It  looks  like  positive  po- 
litical legislation,  as  we  understand  it  at  the  present  day. 
The  Capitularies  of  the  Karolingian  House,  and  of  the  Bene- 
ventine  Princes,  the  statutes  and  edicts  of  the  Lombard  kings 
and  dukes,  and  even  some  of  the  Dooms  of  the  Anglo-Saxon 
kings,  are  alleged  to  be  examples  of  this  kind.  But  here 
we  come  upon  one  of  the  great  sources  of  error  in  medieval 
history.  The  Frank  Empire,  in  both  its  stages,  was,  in  a 
very  important  sense,  a  sham  Empire.  It  aimed  at  repro- 
ducing the  elaborate  and  highly  organized  machinery  of  the 
Roman  State.  Just  as  a  party  of  savages  will  disport  them- 
selves in  the  garments  of  a  shipwrecked  crew,  so  the  Mero- 
wingian  and  Karolingian  kings  and  officials  decked  themselves 
with  the  titles,  the  prerogatives,  the  documents,  of  the  Im- 
perial State.  No  doubt  the  wisest  of  them,  such  as  Charles 
the  Great,  had  a  deliberate  policy  in  so  doing.  But  the 
majority  seem  to  have  been  swayed  simply  by  vanity,  or 
ambition,  or  admiration.  Their  punishment  was  the  down- 
fall of  the  Frank  Empire;  but  they  might  have  been  con- 
soled for  their  failure,  could  they  have  looked  forward  a 
thousand  years,  and  seen  their  pretensions  gravely  accepted 
by  learned  historians  on  the  faith  of  documents  pillaged  from 
the  Imperial-chancery,  which  they  scattered  abroad  without 
understanding  their  contents.  The  Frank  Empire  was,  from 
first  to  last,  a  great  anachronism.  With  a  genuine  civiliza- 
tion equal  in  degree  to  that  of  their  kindred  in  Britain  and 
Scandinavia,  the  Germans  of  continental  Europe  found  them- 


2.     JENKS:    TEUTONIC   LAW  41 

selves  called  upon  to  live  up  to  the  elaborate  civilization  of 
the  Roman  Empire.  They  broke  down  under  the  strain ;  and 
their  breakdown  is  the  first  great  tragedy  in  modern  history, 
the  parent  of  many  tragedies  to  follow.  Those  who  doubt 
the  possibility  of  such  an  explanation,  may  be  referred  to  the 
"  Parliaments  "*  and  "  Cabinets  "  of  Samoa,  and  to  the 
"  Polynesian  Empire." 

Now  one  of  the  most  splendid  prerogatives  of  the  Roman 
Emperor  was  his  power  of  legislation.  Quite  naturally,  his 
imitators,  the  Frankish  kings  and  emperors,  strove  to  exer- 
cise it.  Hence  the  Capitula,  or  royal  and  imperial  edicts, 
which,  at  any  rate  for  some  time,  no  doubt  played  a  great 
part  in  the  history  of  Teutonic  law.  The  difficult  questions 
connected  with  them  have  been  acutely  discussed  by  competent 
critics,  who  are  not  by  any  means  unanimous.1  But  one  or 
two  results  seem  clear. 

The  Capitula  are  distinguishable  from  the  Leges.  They 
emanate  directly  from  royal  authority,  they  deal  with  less 
important  matters,  they  have,  probably,  a  less  permanent 
effect.  In  the  pure  type  of  Capitulary,  the  Capitula  per  se 
scribenda,  there  is  no  pretence  of  collecting  the  law  from  the 
mouth  of  the  people.  Many  of  them  are  mere  directions  to 
royal  officials.  The  great  Capitulare  de  Villis,  the  equally 
important  Capitulare  de  Justitiis  Faciendis,  of  Charles  the 
Great,  are  of  this  character.  It  is  very  doubtful  if  the  Cap- 
itula of  one  king  bound  his  successors ;  for  we  frequently 
find  almost  verbatim  repetitions  by  successive  monarchs.  On 
the  other  hand,  some  of  the  Capitula  are  legibus  addita  — 
incorporated  by  general  consent  with,  and  treated  thence- 
forward as  part  of,  a  Lex,  or  custumal.  Many  of  these  are 
now  so  embedded  in  the  texts  of  the  Leges,  that  it  requires 
a  trained  eye  to  detect  them.  Others,  like  the  great  Capitu- 
lare Saxonicum  of  the  year  797,  declare  openly  their  origin, 
and  testify  to  the  premature  appearance  of  an  idea  which 
is,  ultimately,  to  revolutionize  law,  the  idea  that  the  king 

1  Cf.  Boretius,  Beitrdge  zur  Capitularienkritik.  F.  de  Coulanges,  De 
la  confection  des  lois  au  temps  des  Carolingiens  (Nouvelles  Recherches). 
M.  Thevenin,  Lex  et  Capitula  (Bibliotheque  de  1'Ecole  des  Hautes 
Etudes,  1878,  fasc.  35,  p.  137,  sqq.). 


42      /•     BEFORE    THE    NORMAN    CONQUEST 

proposes  new  laws,  and  the  people  accept  them.  A  large 
number  of  Saxons,  gathered  together  from  divers  pagi, 
Westphalian  and  Eastphalian,  unanimously  consent  to  the 
adoption  of  the  Frankish  Capitula,  with  certain  modifica- 
tions. 

Moreover,  the  Capitula  are  of  great  importance  in  stim- 
ulating the  new  idea  that  Law  is  territorial,  for  the  Capitula 
of  a  monarch  bound  all  within  his  realm,  or  such  part  of  it  as 
the  Capitula  might  specify.  We  are  obliged  to  suppose,  also, 
that  they  secured  practical  obedience,  at  least  during  the 
better  days  of  the  Frank  monarchy ;  for  they  were  twice  col- 
lected in  a  convenient  form,  once  by  the  Abbot  Ansegis  in 
the  year  827,  again,  with  daring  interpolations,  by  the  so- 
called  Benedict,  some  twenty  years  later. 

But,  it  must  be  repeated,  the  Capitularies  are  hothouse 
plants,  due  to  the  stimulus  of  Roman  ideals.  The  monuments 
of  the  purely  German  countries  which  resemble  them  in  name, 
e.  g.  the  Decrees  of  the  Bavarian  Tassilo,  turn  out,  on  in- 
spection, to  be  true  Leges,  produced  or,  at  least,  accepted 
by  a  popular  assembly  under  Frankish  influence.  The  Anglo- 
Saxon  Dooms  are  really  declarations  of  folk-law  by  Clan 
chiefs,  acting  as  mouthpieces  of  their  clans,  at  least  until 
Ecgberht  has  brought  back  imperial  notions  from  the  court 
of  Charles  the  Great.  In  isolated  Scandinavia,  there  is  no 
trace  of  royal  legislation  at  this  period.  And  when  the 
Frank  empire  falls  to  pieces  in  the  ninth  century,  it  will  be 
long  before  the  kings  who  rise  up  out  of  its  ruins  claim  the 
power  to  make  laws.  If  we  leave  England  out  of  sight,  there 
is  an  almost  unbroken  silence  in  the  history  of  Teutonic  law 
during  the  tenth  and  eleventh  centuries.  The  Roman  Empire, 
real  and  fictitious,  is  dead,  and,  with  it,  the  idea  of  legisla- 
tion, if  not  of  Law.  When  the  idea  revives  again,  in  the 
prospering  France  of  the  thirteenth  century,  we  find  the 
legists  asserting  the  royal  power  of  legislation  in  maxims 
which  are  simply  translations  of  the  texts  of  Roman  Law. 
"  That  which  pleases  him  "  (the  king)  "  to  do,  must  be  held 
for  law,"  says  Beaumanoir.  A  century  later,  Bouteillier  is 
careful  to  explain  that  the  king  may  make  laws,  qui  est  emr 
pereur  en  son  royaume. 


2.     JENKS:    TEUTONIC   LAW  43 

And  now,  if  we  are  asked  the  question  —  Did  men  during 
those  tenth  and  eleventh  centuries  live  without  Law?  —  the 
answer  we  must  give  is,  that  they  mostly  did,  and  that  evil 
were  the  results.  In  the  far  south-west,  where  the  Visigothic 
settlers  had  been  crushed  out  of  existence  between  the  Sara- 
cens and  the  provincials,  in  Acquitaine,  Gascony,  Navarre, 
and  Provence,  the  old  Roman  Law  had  remained  the  every- 
day law  of  the  people.  This  is  the  country  of  the  Langue 
d'Oc,  the  later  pays  de  droit  ecrit.  But,  elsewhere,  the  old 
Empire  of  Charles  the  Great  had  become  a  country  of  what 
the  Germans  call  Sonderrecht;  each  little  district  had  its 
own  special  law.  For  this  was  just  the  epoch  of  feudalism, 
and  the  political  unit  was  no  longer  the  clan,  or  the  peo- 
ple, but  the  fief,  the  district  under  the  control  of  a  sei- 
gneur, or  lord.  Of  the  place  of  feudalism  in  political  his- 
tory, we  shall  have  to  speak  when  we  deal  with  the  State; 
here  we  are  concerned  only  with  its  influence  on  notions  of 
Law. 

The  feudal  seigneur  derived  his  powers  from  two  sources. 
On  the  one  hand,  he  represented  a  little  bit  of  the  imperial 
authority  of  Charles  the  Great,  which  had,  so  to  speak,  set 
up  for  itself.  This  is  the  true  droit  seigneurial.  On  the 
other  hand,  he  had  become,  not  merely  lord,  but  proprietor 
of  his  district,  and,  in  this  character,  he  exercised  droit  fon- 
der. He  might  claim  seigneurial  rights  over  land  in  which 
he  had  ceased  to  have  property;  and  he  might  be  merely 
proprietor  of  land  of  which  another  was  seigneur,  although 
in  this  case  he  was  hardly  a  feudal  lord.  Again,  his  claims 
as  seigneur  might  be  more  or  less  extensive;  he  might  be 
duke,  count,  baron,  or  simply  seigneur  justicier.  He  might 
claim  High,  Middle,  or  Low  Justice.  But  the  principle  in 
any  case  was,  that  he  administered  the- law  of  the  fief,  not 
the  law  of  the  land,  or  the  king,  or  the  people.  If  there  is 
a  dispute  as  to  what  this  law  is,  we  must  go,  as  Bouteillier 
tells  us,  to  the  greffe,  or  register  of  the  court  of  the  fief.  If 
this  is  silent  on  the  point,  we  must  call  the  men  of  the  fief 
together,  and  hold  an  enquete  par  tourbe,  an  enquiry  by  the 
multitude.1 

1La  Somme  Rurale  (ed  Le  Caron),  Bk.  I.  Tit.  2. 


44      7.     BEFORE    THE    NORMAN    CONQUEST 

This  state  of  things,  the  result  of  the  total  breakdown  of 
the  Prankish  scheme  of  government,  had  certain  well-marked 
effects  on  the  history  of  Law.  In  the  first  place,  it  stamps 
Law  definitely  as  a  local  institution.  Agriculture  is  almost 
the  sole  industry  of  the  period.  To  pursue  agriculture,  one 
must  occupy  land ;  to  rule  agriculturists,  one  must  rule  them 
through  their  land.  Feudalism  expressed  itself  through  land- 
holding;  it  was  a  military  system  with  land  as  the  reward 
of  service. 

So,  too,  the  peculiar  character  of  the  Fief  led  up  to  the 
famous,  but  much  misunderstood  doctrine,  of  judicium  per 
pares,  "judgement  by  peers."  The  personal  nature  of  the 
tie  between  lord  and  man  forbade  the  hypothesis  that  any 
general  rules  would  cover  the  terms  of  relationship.  There- 
fore, the  vassal  demanded  to  be  tried  by  the  special  law  of 
his  fief.  The  contractual  character  of  the  feudal  bond  en- 
abled him  to  refuse  to  leave  himself  entirely  at  the  mercy 
of  the  lord  as  sole  judge.  Besides,  the  question  might  be 
between  a  vassal  and  the  lord  himself;  and  the  lord  could 
hardly  be  judge  in  his  own  cause.  So  the  principle  was  firmly 
established,  that  the  feudal  court,  at  least  in  the  case  of 
freemen,  is  a  court  in  which  the  lord  is  merely  president,  and 
the  pares,  or  homage,  i.  e.  the  men  of  the  same  fief,  are 
judges.  These  are  totally  different  in  character  from  the 
modern  jury,  with  which  they  are  often  confused.  The  modern 
jury  takes  its  law  from  the  judge,  and  finds  the  truth  of 
the  facts.  The  pares  declared  the  law,  i.  e.  the  rule  of  the 
fief;  and  left  the  facts  to  be  settled  by  some  formal  process. 
Trial  by  jury  gives,  in  fact,  where  it  is  successful,  the  death 
blow  to  trial  by  peers. 

Once  more,  the  law  of  the  Fief  is  the  law  of  a  court.  The 
power  of  holding  a  court  was  not  the  only  privilege' which 
the  feudal  seigneur  inherited  from  the  days  of  Charles  the 
Great.  But  it  was  the  one  he  valued  most,  because  it  brought 
him  in  a  steady  revenue,  in  fees  and  fines,  and  enabled  him 
to  keep  an  eye  on  what  was  happening  among  his  vassals. 
Moreover,  long  after  the  military,  the  fiscal,  and  the  admin- 
istrative powers  of  the  seigneur  had  disappeared  or  become 
unimportant,  his  judiciary  powers  remained  almost  intact. 


8.     JENKS:    TEUTONIC    LAW  45 

So  feudal  law  is  essentially  a  law  of  courts.  No  doubt,  cer- 
tain general  principles  run  through  it  all,  and,  later  on,  we 
*shall  see  attempts,  such  as  the  Libri  Feudorum,  to  state  these 
in  a  universal  form.  No  doubt,  the  right  of  appeal  from  lord 
to  overlord  tended  to  produce  a  certain  uniformity  in  wide 
areas.  But  these  appearances  are  apt  to  be  delusive.  The 
ideal  type  of  feudal  law  is  that  so  graphically  depicted 
in  the  works  which  pass  under  the  title  of  the  Assises  de  Jeru- 
salem, and  which  profess  to  describe  the  usages  of  that  curi- 
ous product  of  the  Crusades,  the  Latin  kingdoms  of  Pales- 
tine. These  are  divided  into  the  Assises  of  the  High  and 
of  the  Low  or  Burgess  Court  respectively.  Each  court  has 
its  own  law. 

The  results  of  this  fact  are  not  very  easy  to  describe; 
but  very  important  to  understand.  The  law  of  a  court,  as 
opposed  to  the  law  declared  by  a  king  or  a  popular  assembly, 
will  be  hesitating,  very  deferential  to  precedent,  not  always 
very  consistent,  delighting  in  small  shades  of  difference,  dif- 
ficult to  discover.  These  are  the  special  characteristics  of 
true  feudal  law.  Where  we  find  bold  principles,  simplicity, 
uniformity,  in  so-called  feudal  law  —  for  example,  in  Eng- 
lish law  of  the  thirteenth  century  —  we  may  be  very  sure 
that  some  alien  influence  has  been  at  work. 

Finally,  the  feudalism  of  law  is  responsible  for  one  more 
result  of  great  importance.  Feudal  law  is  for  men  of  fiefs ; 
but  all  men,  even  in  the  palmy  days  of  feudalism,  are  not 
men  of  fiefs.  Priests  are  not,  the  rising  class  of  merchants 
is  not,  the  Jews  are  not.  Yet  they  must  have  Law.  Leaving 
the  Jews  for  the  present,  let  us  look  at  the  priests  and  the 
merchants. 

In  the  early  days  of  the  Frank  dominion,  the  churches 
lived  under  Roman  Law.  For  one  thing,  the  Christian  Em- 
perors had  legislated  freely  on  ecclesiastical  matters,  long 
before  the  Teutons  were  converted  to  Christianity ;  and  the 
Merowingians  could  hardly  venture  to  meddle  with  the  organ- 
ization of  that  mighty  power  which  had  destroyed  their  an- 
cient gods,  and  done  so  much  to  give  them  the  victory  over 
their  enemies.  For  another,  the  churches  were  corporations, 
juristic  persons;  and  it  took  the  Teutonic  mind  a  long  time 


46   /.  BEFORE  THE  NORMAN  CONQUEST 

to  grasp  the  highly  complex  notion  of  a  corporation.1  No 
doubt,  the  individual  mass  priest  of  Frankish  times  lived 
under  his  folk-law;  but  the  great  foundations  of  regular 
clergy,  which  sprang  up  so  thickly  under  the  fostering  care 
of  the  orthodox  Franks,  could  find  little  in  the  Leges  Bar- 
barorum  to  meet  their  case. 

As  time  went  on,  however,  new  influences  manifested  them- 
selves. The  disappearance  of  the  Emperors  from  Rome,  the 
schism  between  Eastern  and  Western  Christianity,  left  the 
Popes  in  a  commanding  position  with  regard  to  the  Western 
Church.  They  stepped  into  the  place  of  the  Roman  Emperor, 
and  issued  Decretals  which  the  clergy  considered  as  binding 
in  ecclesiastical  matters.  From  the  earliest  times,  also,  Gen- 
eral Councils  of  the  Church  had  met,  and  had  legislated  on 
matters  of  faith  and  discipline.  Towards  the  end  of  the  fifth 
century,  a  collection  of  these  decrees  and  resolutions  was  made 
by  Dionysius  Exiguus,  and  was  regarded  as  of  great  author- 
ity in  Church  matters.  Neither  did  the  Church  disdain  the 
help  of  the  secular  arm,  especially  in  such  delicate  matters 
as  tithes  and  patronage,  in  which  the  lay  mind  might  require 
the  use  of  carnal  weapons.  The  alliance  between  the  earlier 
Karolingians  and  the  Papal  See  is  marked  by  the  appear- 
ance of  ecclesiastical  Capitula,  many  of  them  founded  on  Con- 
ciliar  resolutions,  in  which,  although  the  Frank  Emperor 
maintains  the  royal  claims,  the  Church  gets  it  pretty  much 
her  own  way.2  Similar  documents  are  found  amongst  the 
Anglo-Saxon  laws ; 3  and  even  the  Scandinavian  codes  have 
their  kirkiubolkcer,  or  Church  Books.4  But  ecclesiastical  leg- 
islation becomes  more  and  more  independent  as  time  goes  on. 
A  great  stimulus  is  given  by  the  work  of  the  forger  who 
calls  himself  Isidorus  Mercator,  which  appears  in  the  ninth 
century;  and  which  incorporates  with  the  work  of  Dionysius 
Exiguus  some  sixty  so-called  Decretals  of  more  than  doubt- 

1  On  this  interesting  point,  see  Gierke,  Deutsches  Genossenschaftsrecht, 
and  Pollock  and  Maitland,  History  of  English  Law,  vol.  i.  pp.  469-495. 

»Cf.  the  Capitularies  of  802  (a  sacerdotibus  proposita),  of  803-4 
(ad  Salz),  of  813  (e  Canonibus  excerpta),  all  in  Boretius,  vol.  i.  (M.  G., 
4to)  pp.  105,  119,  173. 

•Cf.  Edgar's  Ecclesiastical  Laws  and  Knut's  Ecclesiastical  Laws, 
in  Schmid,  op.  cit.,  pp.  184  and  250. 

«Cf.  Wettgbtalagen,  ed.  Beauchet,  pp.  131,  sqq. 


0.     JENKS:'  TEUTONIC   LAW  47 

ful  authenticity.  Three  centuries  later,  the  great  work  of 
Gratian  of  Bologna,  the  Decretum  Gratiani,  though  obviously 
the  work  of  a  private  expounder,  was  received  as  an  authori- 
tative statement  of  ecclesiastical  law.  Later  still,  in  the  year 
1234,  come  the  Five  Books  of  Gregory  IX.,  in  1298  the 
"  Sext,"  or  sixth  book,  of  Boniface  VIII.,  in  1317  the  De- 
cretals of  Clement  V.,  the  "  Clementines."  By  this  time,  the 
Church  has  grown  strong  enough  to  repudiate  the  system 
which  was  its  foster  mother.  Roman  Law,  after  all,  is  the 
work  of  laymen ;  and  by  this  time  the  Church  has  become  a 
sacred  caste,  and  will  acknowledge  no  secular  authority. 
Alexander  III.  forbids  the  regular  clergy  to  leave  their 
cloisters  to  hear  lectures  on  "  the  laws  "  and  physic.  In  1219 
comes  the  Bull  Super  Speculam,  in  which  Honorius  extends 
the  prohibition  to  all  beneficed  clerks.1  This  is  not  the  place 
in  which  to  discuss  the  difficult  question  of  the  border  line 
between  the  provinces  of  Canon  and  secular  law.  It  is  suf- 
ficient to  say  that,  from  the  ninth  century  to  the  close  of  the 
Middle  Ages,  not  the  most  autocratic  monarch  of  Western 
Europe,  not  the  most  secular  of  lawyers,  would  have  dreamed 
of  denying  the  binding  force,  within  its  proper  sphere,  of 
the  Canon  Law.  It  had  its  own  tribunals,  its  own  practi- 
tioners, its  own  procedure ;  it  was  a  very  real  and  active  force 
in  men's  lives.  And  yet,  it  would  puzzle  an  Austinian  jurist 
to  bring  it  within  his  definition  of  Law.  The  State  did  not 
make  it ;  the  State  did  not  enforce  it. 

The  case  of  the  Law  Merchant  is  equally  instructive. 
Trade  and  commerce,  almost  extinct  in  the  Dark  Ages  which 
followed  the  downfall  of  the  Karolingian  Empire,  revived 
with  the  better  conditions  of  the  eleventh  century,  and  were 
stimulated  into  sudden  activity  by  the  Crusades.  The  new 
transactions  to  which  they  gave  rise  were  beyond  the  horizon 
of  the  law  of  the  Fief  and  the  old  folk-law  of  the  market. 
Gradually,  the  usages  of  merchants  hardened  into  a  cosmo- 
politan law,  often  at  positive  variance  with  the  principles  of 
local  law,  but  none  the  less  acquiesced  in  for  mercantile  trans- 
actions, and  enforced  by  tribunals  of  commanding  eminence 
and  world-wide  reputation,  such  as  the  courts  of  the  Han- 
decretals  of  Gregory  IX.  (ed.  Friedberg),  Bk.  III.  Tit.  50,  c.  10. 


48      /.     BEFORE    THE    NORMAN    CONQUEST 

scatic  League,  and  the  Parloir  aux  Bourgeois  at  Paris.  Oc- 
casionally, some  special  rule  of  the  Law  Merchant  receives 
official  sanction  from  king  or  seigrieur.  But,  for  the  most 
part,  the  Law  Merchant  is  obeyed,  no  one  knows  why.  It  is 
simply  one.  of  several  authorities  of  different  origin,  which 
may,  and  in  fact  do,  come  into  conflict  at  many  points.  The 
need  of  a  reconciling  influence  is  obvious.  In  the  thirteenth 
century  the  Teutonic  world  is  still  awaiting  the  solution  of 
the  all-important  question  —  What  is  Law  ?  It  is  the  glory 
of  England  that  she,  of  all  the  countries  of  Teutonic  Europe, 
was  the  first  to  furnish  that  solution. 

At  the  time  of  the  Norman  Conquest,  England  is,  from  a 
legal  standpoint,  the  most  backward  of  all  Teutonic  coun- 
tries, save  only  Scandinavia.  While  France  and  Germany 
have  their  feudal  laws,  which,  fatal  as  they  are  to  unity 
and  good  government,  are  yet  elaborate  and  complete  within 
their  own  sphere;  while  Spain,  after  long  harrying  by  the 
Moslem,  is  awaking  once  more  to  brilliant  life  and  precocious 
political  development  under  Sancho  the  Strong  and  Cid  Cam- 
peador;  England  is  still  in  the  twilight  of  the  folk-laws, 
and,  seemingly,  without  hope  of  progress.  England  had 
never  been  part  of  the  Frank  Empire;  and  such  rudiments 
of  a  feudal  system  as  she  possessed  before  the  Conquest  can- 
not be  compared  with  the  highly  organized  feudalism  of  the 
Continent.  To  revert  again  to  the  admirable  French  dis- 
tinction, there  might  be  in  England  a  justice  fonciere,  there 
was  little  or  no  justice  seigneuriale.  In  later  times,  this  fact 
was  of  infinite  benefit;  in  the  days  before  the  Conquest  it 
was  one  of  the  chief  reasons  why  English  law  lagged  behind 
in  the  race.  The  feeble  Imperialism  of  Eadgar  and  Eadward, 
even  the  rude  vigour  of  Knut,  seem  to  have  left  little  perma- 
nent impress  on  English  law.  When,  at  the  beginning  of  the 
twelfth  century,  an  English  writer  is  trying  to  describe  Eng- 
lish law,  in  the  so-called  ]Leges  Henrici,  he  ventures  to  quote 
as  authorities  the  antiquated  Lex  Salica  and  Lex  Ribuaria.1 
About  the  same  time  the  author  of  the  book  known  as  the 
Laws  of  Edward  the  Confessor  resorts,  for  his  explanation 
of  the  title  of  "  king,"  to  the  old  story  of  the  correspondence 
'See  Schmid,  Getetze  der  Angehachsen,  ed.  2,  pp.  482,  485. 


0.     JENKS:    TEUTONIC   LAW  49 

between  Pepin  the  Short  and  Pope  "  John."  J  Evidently, 
English  law  was,  even  then,  in  a  very  rudimentary  state. 

But  the  Norman  Conquest  soon  changed  all  this.  The 
Normans  were  the  most  brilliant  men  of  their  age ;  and  their 
star  was  then  at  its  zenith.  As  soldiers,  as  ecclesiastics,  as 
administrators,  above  all,  as  jurists,  they  had  no  equals,  at 
least  north  of  the  Alps.  The  vigour  which  they  had  brought 
with  them  from  their  Scandinavian  home  had  become  infused, 
during  the  century  which  followed  the  treaty  of  St.  Clair  sur 
Epte,  with  the  subtlety  and  the  clerkly  skill  of  the  Gaul.  The 
combination  produced  a  superb  political  animal.  The  law 
and  the  administration  of  Normandy  in  the  eleventh  and 
twelfth  centuries  are  models  for  the  rest  of  France.2  Wher- 
ever the  Norman  goes,  to  England,  to  Sicily,  to  Jerusalem, 
he  is  the  foremost  man  of  his  time.  We  cannot  leave  these 
facts  out  of  account  in  explaining  the  place  of  England  in 
the  history  of  Law. 

But  the  greatest  genius  will  do  little  unless  he  is  favoured 
by  circumstances ;  and  circumstances  favoured  the  Normans 
in  England.  The  more  rudimentary  the  English  law,  the 
more  plastic  to  the  hand  of  the  reformer.  While  Philip 
Augustus  and  St.  Louis  found  themselves  hampered  at  every 
turn  by  the  network  of  feudalism,  while  even  the  great  Bar- 
barossa  was  compelled  to  temporize  with  his  vassals,  and  to 
respect  the  privileges  of  the  Lombard  League,  Henry  Beau- 
clerk  and  Henry  of  Anjou  found  it  no  impossible  task  to 
build  up  a  new  and  uniform  system  of  law  for  their  subjects, 
and  to  pave  the  way  for  still  greater  changes  in  the  future. 
We  have  now  to  note  the  effect  of  the  Norman  Conquest  on 
the  history  of  Law. 

In  the  first  place,  it  converted  the  law  of  England  into  a 
lex  terroe,  a  true  local  law.  There  is  to  be  no  longer  a  law 
of  the  Mercians,  another  of  the  West  Saxons,  and  another 
of  the  Danes,  not  even  a  law  for  the  English  and  a  law  for 

1  Schmid,  Oesetze  der  Angehachsvn,  at  p.  500. 

1  Luchaire,  Manuel  des  Institutions  Franqaises,  p.  257,  n.  See  the 
interesting  excursus  on  the  history  of  Norman  Law  by  Brunner, 
Entstehung  der  Schwurgerichte,  cap.  vii.,  and  by  the  same  author  in 
Holtzendorff's  Encyklopddie  der  Rechtswissenschaft,  Part  I.,  5th  ed., 
pp.  303-348. 


50      /.     BEFORE    THE    NORMAN    CONQUEST 

the  Normans,  but  a  law  of  the  land.  It  took  about  a  century 
to  accomplish  this  result,  which  we  doubtless  owe  to  feudal 
principles.  England  was  one  great  fief  in  the  hands  of  the 
king,  and  it  was  to  have  but  one  law.  Writing  in  the  reign 
of  Henry  II.,  Glanville  can  speak  of  the  "  law  and  custom  of 
the  realm."  Such  a  phrase  would  then  have  been  meaning- 
less in  the  mouth  of  a  French  or  German  jurist.  About  this 
time  a  celebrated  expression  makes  its  appearance  in  Eng- 
land. Men  begin  to  speak  of  the  "  Common  Law."  The 
phrase  is  not  new;  but  its  application  is  suggestive.  Can- 
onists have  used  it  in  speaking  of  the  general  law  of  the 
Church,  as  distinguished  from  the  local  customs  of  particular 
churches.  We  may  trace  it  back  even  to  the  Theodosian 
Code.1  In  the  wording  of  a  Scottish  statute  of  the  sixteenth 
century,  (and  this  is  very  suggestive),  it  will  mean  the  Roman 
Law.2  But,  in  the  mouth  of  an  English  jurist  of  the  thir- 
teenth century,  it  means  one  thing  very  specially,  viz.  the 
law  of  the  royal  court.  And  because  the  royal  court  is  very 
powerful  in  England,  because  it  has  very  little  seigneurial 
justice  to  fight  against,  because  the  old  popular  courts  are 
already  antiquated,  the  law  of  the  royal  court  rapidly  becomes 
the  one  law  common  to  all  the  realm,  the  law  which  swallows 
up  all,  or  nearly  all,  the  petty  local  and  tribal  peculiarities 
of  which  English  law,  at  the  time  of  the  Conquest,  is  full. 
The  Common  Law  is  the  jus  et  consuetudo  regni  with  a  fuller 
development  of  meaning.  It  is  not  only  territorial;  it  is 
supreme  and  universal.  This  is  the  first  great  result  of  the 
Conquest. 

Again,  the  Common  Law  is  the  law  of  a  court.  When  the 
Normans  first  settled  in  England,  they  endeavoured  to  collect 
law,  somewhat  in  the  old  way  of  the  Leges  Barbarorum, 
through  the  wise  men  of  the  shires  and  the  inquests  of  the 
king's  officials.  At  least,  that  was  long  the  tradition ;  and 
whether  or  no  the  Leges  Eadwardi  which  have  come  down  to 
us  are  the  result  of  such  a  process,  we  may  be  pretty  sure 
that  the  Norman  kings  made  some  effort  to  ascertain  what 
really  were  the  provisions  of  those  laws  and  customs  of  the 

1  Pollock  and  Maitland,  History,  vol.  i.  pp.  155,  156. 

1  Acts  of  the  Parliament  of  Scotland,  1540,  cap.  i.  vol.  ii.  p.  356. 


0.     JENKS:    TEUTONIC   LAW  51 

English,  which  they  more  than  once  promised  to  observe.1 
But  these  were  too  formless  and  too  antiquated  to  suffice  for 
the  needs  of  an  expanding  generation.  The  whole  work  of 
legal  administration  had  to  be  put  on  a  different  footing. 

This  result  is  achieved  in  the  twelfth  century  by  the  two 
Henries.  Henry  Beauclerk  begins  the  practice  of  sending 
his  ministers  round  the  country  to  hear  cases  in  the  local 
courts.  This  is  a  momentous  fact  in  the  history  of  English 
law;  but  it  will  be  observed  that  it  is  not  legislation  at  all, 
merely  an  administrative  act.  Neither  is  it  quite  original; 
for  the  tradition  of  the  Karolingian  missi,  or  perambulating 
officials,  may  have  floated  down  to  the  twelfth  century,  and 
the  French  kings  are  holding  Echiquiers  in  Normandy,  and 
Grands  Jours  in  Champagne.  But  these  are  irregular  and 
unsystematic ;  in  the  fourteenth  century  we  find  Philip  the 
Fair  promising  to  hold  two  Exchequers  and  two  Great  Days 
a  year,  which  implies  that  Exchequers  and  Great  Days  have 
been  rare  of  late.2  By  that  time  the  English  circuit  system 
has  been  long  a  fixed  institution,  working  with  regularity 
and  despatch.  It  has  stood  the  shock  of  Stephen's  reign; 
under  the  great  king  who  is  both  Norman  and  Angevin,  it 
has  struck  its  roots  deep  into  the  soil.  Before  the  end  of 
the  twelfth  century,  the  king's  court  has  become  the  most 
powerful  institution  in  the  kingdom,  a  highly  organized  body 
of  trained  officials,  who  make  regular  visitations  of  the  coun- 
ties, but  who  have  a  headquarters  by  the  side  of  the  king 
himself.  This  court  is  at  first  financial,  administrative,  judi- 
cial. In  course  of  time  the  judicial  element  consolidates 
itself;  it  becomes  professional.  It  devises  regular  forms  of 
proceeding;  the  first  extant  Register  of  Writs  dates  from 
1227,  but,  doubtless,  earlier  registers  have  existed  for  some 
time  in  the  archives  of  the  Court.  Above  all,  it  keeps  a  strict 
and  unassailable  record  of  all  the  cases  which  come  before  it. 
Any  doubt  as  to  precedent  can  be  set  at  rest  by  a  reference 
to  the  Plea  Rolls,  which  certainly  begin  before  the  close  of 
the  twelfth  century.  Later  on,  it  publishes  its  proceedings 

1  Stubbs,  Select  Charters,  ed.  5,  pp.  84  (William  I.),  96  (Henry  I.), 
119  (Stephen). 

!  Lauriere,  Ordonnances  des  rois  de  France,  ann.  1312,  vol.  xii.  p.  354. 


52      /.     BEFORE    THE    NORMAN    CONQUEST 

in  a  popular  form;  the  first  Year  Book  comes  from  1292. 
Between  the  accession  of  Henry  I.  and  the  death  of  Henry 
III.,  this  Court  has  declared  the  Common  Law  of  England. 
That  law  is  to  be  found,  not  in  custumals,  nor  in  statutes, 
nor  even  in  text-books ;  but  in  the  forms  of  writs,  and  in  the 
rolls  of  the  King's  Court.  It  is  judiciary  law;  the  men  who 
declared  it  were  judges,  not  legislators,  nor  wise  men  of  the 
shires.  No  one  empowered  them  to  declare  law ;  but  it  will 
go  hard  with  the  men  who  break  the  law  which  they  have 
declared. 

Still,  we  have  not  reached  the  end  of  the  effects  of  the 
Norman  Conquest.  If  the  English  king  had  his  court  at 
Westminster,  the  French  king  had  his  Parlement  at  Paris, 
the  German  Kaiser  his  Hofgericht  at  Mainz  or  Frankfort, 
the  kings  of  Leon  and  Castile  their  Audiencia  Real  at  Leon 
or  Valladolid.  Though  the  Parlement  of  Paris  and  the  Impe- 
rial Hofgericht  had  infinitely  less  power  in  the  thirteenth  cen- 
tury than  the  King's  Court  in  England ;  yet  the  Exchequer 
Records  of  Normandy  and  the  Olim  or  judgement  rolls  of  the 
Parlement  of  Paris  may  be  compared  with  the  Plea  Rolls  of 
England;  and  the  Style  de  du  Breuil  and  the  Grant  Stille 
de  la  Chancellerie  de  France  may  rank  beside  the  Register  of 
Writs,  for  the  work  of  Breuil  at  least  was  regarded  as  offi- 
cial.1 But  the  Norman  Conquest  had  strengthened  the  posi- 
tion of  the  Crown  in  England  in  more  ways  than  one.  Not 
only  was  the  king  of  England  in  the  thirteenth  century 
infinitely  more  powerful  within  his  realm  than  the  king  of' the 
English  in  the  tenth ;  he  was  more  powerful  than  the  French 
king  in  France,  far  more  powerful  than  the  German  Kaiser 
in  Germany.  Without  insisting  on  the  military  side  of  the 
Norman  Conquest,  we  may  notice  the  fact  that  the  kingship 
of  England  was,  in  the  hands  of  William  and  his  successors, 
emphatically  a  "  conquest,"  not  a  heritage  or  an  elective 
office.  And,  when  we  come  to  look  at  the  ideas  which  have 
gone  to  make  up  our  notion  of  property,  we  shall  find  that 
the  nowveau  acquet,  the  "  conquest,"  is  much  more  at  the  dis- 
posal of  its  master  than  the  heritage  of  the  office.  The  Nor- 
man Duke  who  acquired  England  made  good  use  of  that 
1  Viollet,  Prtcit  de  I'Histoire  du  Droit  Francois,  p.  160. 


0.     JENKS:    TEUTONIC   LAW  53 

idea.  He  maintained  an  elaborate  pretence  of  heirship  to 
Edward  the  Confessor;  but  all  men  must  have  seen  that  it 
was  a  solemn  farce.  As  Duke  of  Normandy,  he  owed  at 
least  nominal  allegiance  to  the  King  of  the  French ;  as  king 
of  England  he  was  "  absolute."  All  was  his  to  give  away ; 
what  he  had  not  expressly  given  away,  belonged  without 
question  to  him.  Among  the  documents  of  the  Anglo-Norman 
period,  the  charter  plays  a  prominent  part;  and  a  learned 
jurist  has  explained  that  the  essential  feature  of  a  charter 
is  that  it  is  a  "  dispositive  "  document,  a  document  which 
transfers  to  B  some  right  or  interest  which  at  present  belongs 
to  A.1  So  we  get  the  long  and  important  series  of  English 
charters,  which  culminates  in  the  Great  Charter  of  John  and 
the  Merchant  Charter  of  Edward  I.  When  the  English 
Justinian  is  making  his  great  enquiry  into  the  franchises 
which  his  barons  claim  to  exercise,  he  insists,  and  nearly  suc- 
ceeds in  maintaining,  that,  for  every  assertion  of  seigneurial 
privilege,  the  claimant  shall  show  a  royal  charter.2  It  would 
have  been  absurd  for  Philip  the  Fair  or  Rudolf  of  Habs- 
burg  to  make  such  a  demand;  for  their  feudatories  held 
franchises  by  older  titles  than  their  own,  unless  indeed  the 
German  Kaiser  had  founded  himself  on  the  authority  of 
Charles  the  Great.  The  Charter  is  not  a  peculiarly  English 
institution;  the  town  charters  of  .Germany  and  France  go 
back  at  least  to  the  twelfth  century.3  But  the  charter  as  a 
monument  of  general  law  is  peculiar  to,  or  at  least  specially 
characteristic  of  England;  and  it  is  one  of  the  many  signs 
that  the  English  monarchy  of  the  twelfth  and  thirteenth 
centuries  was  the  most  powerful  and  centralized  monarchy 
of  the  Teutonic  world.  England  was  a  royal  domain. 

But  the  lord  of  a  domain  may  make  rules  for  its  manage- 
ment, at  least  with  the  concurrence  of  his  managing  officials. 
If  any  precedent  were  required  for  this  assertion,  we  have  it 
in  the  Capitulare  de  Villis  of  Charles  the  Great.  But  it  is 

1  Brunner,    zur    Rechtsgeschichte    der    romischen    und    germanischen 
Urkunde,  p.  211. 

2  Pollock  and  Maitland,  History,  vol.  i.  p.  559. 

3  Stobbe,     Oeschichte    der    deutschen    Rechtsquellen,    Pt.    I.    p.    485. 
Esmein,  Histoire  du  Droit  Francois,  2nd.  ed.,  p.  312.     It  is  noteworthy 
that  one  of  the  oldest  and  most  important  of  French  town-charters,  the 
so-called  Etablis  semens  de  Rouen,  was  granted  by  an  English  king. 


54     /.     BEFORE    THE    NORMAN    CONQUEST 

one  of  the  earliest  ideas  of  proprietorship.  Long  before  the 
descendants  of  Hugues  Capet  ventured  to  legislate  as  Kings 
of  France,  they  issued  ordinances  for  their  domains.  The 
great  feudatories  of  .the  French  Crown,  the  Dukes  of  Nor- 
mandy and  Brittany,  the  Counts  of  Champagne  and  Poitou, 
did  the  like.  The  legislation  of  the  smaller  States  of  Ger- 
many, the  feudal  domains  of  the  Princes  of  the  Empire, 
begins  in  a  similar  way.  And  so  it  is  quite  natural  to  find, 
in  the  England  of  Anglo-Norman  times,  Assises  and  Ordi- 
nances which  come  nearer  to  modern  ideas  of  law  than 
anything  we  have  seen  yet  in  our  search.  The  Assises  of 
Clarendon  and  Northampton,  the  Assise  of  Arms,  the  Wood- 
stock Assise  of  the  Forest,  the  Assise  of  Measures  in  1197, 
the  Assise  of  Money  in  1205,  all  these  look  as  though  royal 
legislation  is  going  to  take  the  place  of  all  other  law.  If 
Henry  of  Anjou  had  been  succeeded  by  one  as  able  as  himself, 
with  the  magnificent  machinery  of  the  royal  court  to  back 
him,  and  with  no  great  feudatories  to  hold  him  in  check, 
England  might  very  well  have  come  to  take  her  law  from  the 
mouth  of  the  king  alone.  But,  fortunately  for  England, 
Henry's  three  successors  were  not  men  of  his  stamp.  Richard 
was  able,  but  frivolous;  John,  able,  but  so  untrustworthy, 
that  his  servants  turned  against  him;  Henry,  weak  and 
incapable.  The  danger  of  royal  absolutism  passed  away. 
There  was  even  danger  that  the  power  of  legislation  would 
pass  away  too.  For  not  only  had  the  royal  authority  fallen 
into  weak  hands.  The  king's  judges  seemed  to  have  lost 
their  inventive  power ;  and  the  list  of  writs  was  almost  closed 
when  the  third  Henry  died.  Henceforth  judicial  legislation 
would  proceed  only  by  the  slow  steps  of  decision  and  prece- 
dent. But  there  arises  a  king  who,  consciously  or  uncon- 
sciously, by  genius  or  good  luck,  is  destined  to  be  famous  for 
all  time  as  the  propounder  of  the  great  idea  which  is  to  crown 
the  work  of  England  in  the  history  of  Law.  Law  has  been 
declared  by  kings,  by  landowners,  by  folks,  by  judges,  by 
merchants, by  ecclesiastics.  If  we  put  all  these  forces  together, 
we  shall  get  a  law  which  will  be  infinitely  stronger,  better, 
juster,  above  all,  more  comprehensive,  than  the  separate  laws 
which  have  preceded  it.  "That  which  touches  all,  shall- be 


8.     JENKS:    TEUTONIC    LAW  55 

discussed  by  all."  How  far  Edward  foresaw  this  result,  how 
far  he  desired  it,  "how  far  he  borrowed  the  ideas  of  others,  how 
far  he  acted  willingly,  must  be  left  for  specialists  to  decide. 
But  the  broad  fact  remains,  that  he  created  the  most  effective 
law-declaring  machine  in  the  Teutonic  world  of  his  day,  that 
he  gave  to  England  her  unique  place  in  the  history  of  Law. 
One  part  only  of  the  scheme  was  a  temporary  failure. 
Though  Edward  succeeded,  after  a  sharp  struggle,  in  com- 
pelling the  nominal  adhesion  of  the  clergy  to  the  new  system, 
the  Canon  Law  continued,  for  two  centuries  and  a  half,  to  be 
a  real  rival  of  the  national  law.  But  its  day  came  at  last; 
and,  after  the  Reformation,  the  clergy  found  themselves 
legislated  for  by  a  Parliament  in  which  they  had  ceased  to 
have  any  effective  share.  Though  a  just  judgement  upon  an 
unpatriotic  policy,  it  was  a  blot  on  the  system,  which  has 
never  yet  been  quite  removed.  But,  with  the  Reformation, 
the  modern  idea  of  Law  was  at  last  realized;  and  Hobbes 
could  truly  say,  in  words  which  became  the  text  of  Austin's 
teaching  —  "Civil  Law  is,  to  every  subject,  those  Rules 
which  the  Commonwealth  hath  commanded  him."  But  this 
was  the  result  of  a  thousand  years  of  history ;  and,  as  yet, 
it  was  true  of  England  alone.1 

In  this  important  matter,  we  are  apt  to  be  deceived.  For, 
if  we  look  to  the  continent  of  Europe,  we  see  that  there  are 
Etats  Generaux  in  France,  Cortes  in  Castile  and  Aragon,  a 
Reichstag  or  Diet  of  the  Holy  Roman  Empire  in  Germany. 
And  these  bodies  do,  undoubtedly,  declare  a  certain  amount 
of  law.  But  the  great  mass  of  the  collection  of  French 
Ordonnances  which  has  been  edited  by  M.  Laurie  re  and  his 
successors,  was  never  submitted  to  the  Etats  Generaux;  it  is 
the  work  of  the  king  and  his  Council.  The  scanty  legislation 
of  the  Cortes  does  not  suffice  for  the  needs  of  Spain,  which 
have  to  be  met  by  such  compilations  as  El  fuero  vie  jo  de 
Castilla,  El  fuero  Juzgo,  and  Las  Siete  Partidas,  which  are 
not  legislation  at  all,  but  merely  new  editions  of  the  old  Leges 
Wisigothorum,  collections  of  judicial  decisions,  and  adapta- 
tions of  the  Pandects.  In  Germany,  the  Diet  ceases  to  be  an 
effective  body  from  the  death  of  Frederick  II. ;  and,  though 
1  Hobbes,  Leviathan,  cap.  xxvi. 


66      /.     BEFORE    THE    NORMAN    CONQUEST 

Frederick  III.  and  Maximilian  make  a  gallant  attempt  to 
restore  its  prestige,  it  never  becomes  the  normal  law-declaring 
organ  for  Germany.  Only  in  Scandinavia  does  the  success 
of  the  Riksdaag  at  all  bear  comparison  with  the  work  of  the 
English  Parliament.  In  Scandinavia  there  is  a  rapid  and 
brilliant  display  of  legal  activity  in  the  thirteenth  century. 
The  folk-laws  of  Norway,  Sweden,  Denmark,  and  Iceland  are 
collected,  and  are  rapidly  followed  by  true  national  laws,  the 
Landslog  of  King  Magnus  Lagabotir  for  Norway,  and  King 
Magnus  Eriksson's  Landslag  (the  so-called  "MELL")  for 
Sweden.  Thenceforward,  through  the  Union  of  Calmar,  the 
modern  idea  of  Parliamentary  law  seems  to  be  making  its 
triumphant  way,  until  it  is  checked  by  the  political  troubles 
of  the  sixteenth  and  seventeenth  centuries.  But,  unhappily, 
the  history  of  Scandinavia  is  too  obscure  a  subject  to  be 
handled  safely  by  any  but  a  specialist. 

It  is  from  France  and  Germany  that  we  learn  most  clearly 
and  unmistakeably  the  results  which  followed  from  a  failure 
to  grasp  the  Edwardian  idea  of  Law.  In  France  and  Ger- 
many, the  law  which  prevailed  from  the  thirteenth  to  the 
sixteenth  centuries  was  feudal,  local,  municipal,  royal ;  but 
not  national.  The  feudal  and  local  laws  begin  to  appear  in 
the  thirteenth  century  in  the  form  of  text-books,  evidently  the 
work  of  private  compilers,  though  in  some  cases  in  an  imper- 
sonal guise.  Thus  we  get  the  Tres  Ancien  Coutumier  of 
Normandy  and  its  successors,  the  Conseil  of  Pierre  de  Fon- 
taines for  the  Vermandois,  the  Livre  de  Jostice  et  Plet  and  the 
Etablissemens  le  Roy  for  the  Orleanais,  the  customs  of  Cler- 
mont  in  Beauvoisis  by  Philippe  Beaumanoir.  Thus  also  we 
get  the  Saxon  Mirror  of  Eike  von  Repgowe,  the  German 
Mirror,  the  Suabian  Mirror,  and  the  Little  Kaiser's  Law  for 
Germany.  But  there  is  a  curious  difference  between  the  fates 
of  the  two  groups.  For  while,  in  France,  the  purely  exposi- 
tory character  of  the  text-books  is  rarely  lost  sight  of,  while 
Boutillier,  as  previously  pointed  out,  expressly  tells  us  that 
the  authoritative  law  must  be  searched  for  in  the  greffe  of  the 
court  or  the  enquete  par  tourbe,  in  Germany  the  Rechts- 
bucher  seem  to  have  been  accepted,  in  all  good  faith,  as  actual 
law.  The  reason  for  this  curious  difference  is  not  easy  to 


8.     JENKS:    TEUTONIC   LAW  57 

find.  We  may  suspect  it  to  lie  in  the  clerkly  qualities  of  the 
French  court  officials.  We  know  that  some  at  least  of  the 
French  courts  kept  careful  records,  and  used  the  regular 
forms ;  the  German  Weisthumer  and  the  German  form-books, 
the  decisions  of  the  Court  at  Ingelheim  and  the  Oordelboek  of 
Drenthe,  the  Summa  prosarum  dictaminis  and  the  Summa 
curice  regis,  seem  to  have  been  poor  by  comparison.  At  a 
certain  stage  of  its  history,  the  life  of  an  institution  depends 
on  its  using  stereotyped  forms.  So  the  text-books  of  Eike 
von  Repgowe  and  others  came  to  be  accepted  in  Germany  as 
Law,  although  men  must  have  known  them  to  be  the  work  of 
private  jurists.  Documents  of  the  fifteenth  century  quote 
the  Suabian  Mirror  (under  its  later  name  of  Kaiserrecht) 
as  a  textual  authority ; 1  and  all  kinds  of  legends  grow  up, 
which  attribute  the  authorship  of  the  Saxon  Mirror  to  kings 
and  emperors.2 

On  the  other  hand,  the  French  mind  clung  to  the  idea  that 
the  text-books  were  not  themselves  Law ;  and,  in  the  fifteenth 
century,  we  find  a  most  interesting  process  going  on.  The 
uncertainty  and  obscurity  of  the  local  customs  had  at  last 
aroused  the  hostility  of  the  kings  who  were  building  up  a 
great  centralizing  monarchy  in  France;  and,  though  they 
did  not  venture  to  alter  those  local  customs  which  were  so 
fatal  an  obstacle  to  their  policy,  they  determined  that  at 
least  they  should  be  known  and  recorded.  Perhaps  they  had 
a*  presentiment  that  greater  things  might  happen  as  a  result 
of  the  step.  Perhaps  they  thought  that  a  custom  once  for- 
mulated might  be  altered ;  at  least  there  would  be  something 
to  attack.  Perhaps  they  dreamed  of  a  unified  France,  living 
under  one  law.  If  so,  they  must  have  had  a  rude  awakening. 
For  when,  as  the  results  of  the  labours  of  Charles  VII.,  Louis 
XL,  Charles  VIIL,  and  Louis  XII.,  the  official  Coutumiers 
are  finally  before  the  world,  it  is  a  startling  picture  that  they 
reveal  to  us.  Each  district  lives  under  its  own  law,  and  is 
judged  by  its  feudal  seigneurs.  Not  merely  great  feudal 

1  See,  for  example,  the  document  given  in  Loersch  and  Schroder, 
Urkunden  zur  Geschichte  des  deutschen  Privatrechtes,  ed.  2,  Part  I. 
No.  339. 

1  Stobbe,  op.  cit.,  p.  318. 


58      /•     BEFORE    THE    NORMAN    CONQUEST 

princes,  but  petty  barons  and  seigneurs  claim  the  right  of 
pit  and  gallows,  of  toll,  of  forfeiture  in  their  fiefs.  One  is 
inclined  to  wonder  where  the  State,  as  we  understand  it,  finds 
any  place  at  all.  Nowhere  can  we  find  a  more  instructive 
contrast  between  the  England  of  Elizabeth  and  the  France 
of  that  same  day,  than  in  a  comparison  of  Coke's  First 
Institute  with  one  of  the  official  Coutumiers  of  the  sixteenth 
century.  The  English  law-book  describes,  in  crabbed  lan- 
guage no  doubt,  a  system  which  is  uniform,  simple,  and 
intelligible;  the  Coutumier  depicts  a  state  of  anarchy  and 
disintegration,  of  anomalies  and  inconsistencies.  And  yet  it 
speaks  only  of  a  single  district;  there  are  dozens  of  other 
Coutumiers,  and  the  whole  pays  de  droit  ecrit,  to  be  taken 
into  account.  And  the  mischief  is  not  to  be  cured  by  ordinary 
remedies.  Splendid  as  was  the  work  of  the  great  French 
jurists  of  the  seventeenth  and  eighteenth  centuries,  of  Mou- 
lin, Guy  Coquille,  Loisel,  Domat,  Pothier,  it  needed  the  red 
arm  of  the  Revolution  to  make  a  Common  Law  for  France. 

.A  word  must  be  said  as  to  the  process  by  which  these 
official  Coutumiers  were  compiled;  for  it  is  illuminative  of 
the  history  of  Law.  There  is  no  thought  of  imposing  new 
rules.  The  custom  is,  indeed,  "  proj  ected  "  by  the  royal 
officials,  and  examined  by  commissaries  of  the  Parlement  of 
Paris ;  but,  before  it  can  be  declared  to  be  law,  it  must  be 
submitted  to  an  assembly  containing  representatives  of  all 
orders  and  ranks  in  the  district,  and  solemnly  discussed  ami 
accepted  by  them.1  This  is  no  mere  form.  In  the  great 
collection  of  Bourdot  de  Richebourg,2  published  in  the 
eighteenth  century,  we  find  the  very  names  of  those  who  were 
present,  in  person  or  by  deputy,  at  the  reading  of  the  various 
pro  jets;  we  know  the  very  points  upon  which  they  raised 
objections.  The  object  of  the  redaction  is  to  render  the  use 
of  the  enquete  par  tourbe  unnecessary  for  the  future;  it 
declares  the  custom  once  and  for  all.  But  to  do  this  it  holds 
a  great  and  final  enqutte  par  tourbe;  it  collects,  but  it  does 
not  make,  the  law. 

Turning  to  Germany,  we  find  that  there  have  been  attempts 

1Esmein,  op.  nV.ip.  749. 

1  Bourdot  de  Richebourg,  Coutumier  gtntral.     Paris,  1724. 


8.     JENKS:    TEUTONIC   LAW  59 

at  a  similar  process.  The  Landrechte  which  appear  in  the 
fourteenth  and  fifteenth  centuries,  the  Austrian  Landrecht 
(dating  so  far  back  as  1292),  the  Bavarian  Landrecht  of 
1346,  the  almost  contemporary  Silesian  Landrecht,  are  little 
more  than  official  editions  of  the  Suablan  Mirror  and  the 
Saxon  Mirror.  But  the  inherent  weakness  of  German  legal 
developement  gives  rise  at  this  point  to  the  greatest  tragedy 
in  the  history  of  Teutonic  Law.  Overcome  by  the  evils  of 
Partikularismus,  dazzled  by  the  false  glare  of  the  semi-Roman 
Kaisership,  drugged  by  the  fatal  influence  of  the  Italian 
connection,  German  Law  ceases  to  develope  on  its  own  lines, 
and  submits  to  the  invasion  of  the  Roman  Law.  This  time  it 
is  not  the  Code  of  Theodosius  which  wins  the  victory ;  but 
that  masterpiece  of  Roman  state-craft,  the  Corpus  Juris 
Civilis  of  Justinian,  which  the  Glossators  and  Commentators 
of  Italy  have  expanded  into  a  marvellous  system  of  scholastic 
law.  Through  the  universities,  through  the  writers  and 
teachers,  through  the  learned  Doctors  who  fill  the  courts  of 
Germany,  the  Roman  Law  becomes  the  Common  Law  of  the 
German  Empire.  Even  feudal  law,  for  which,  of  course,  there 
is  no  provision  in  the  work  of  Justinian,  catches  T;he  impulse ; 
and  the  "  Feud  Books  "  of  Milan  are  received  in  Germany 
proper  as  the  Decima  Collatio  Novellarum,  that  is,  as  the 
legislation  of  Roman  Emperors.  The  process  is  going  on 
during  the  whole  of  the  fifteenth  and  sixteenth  centuries ;  but 
the  crowning  point  is  the  establishment,  in  the  year  14*95,  of 
the  Reichskammergericht,  or  supreme  court. of  the  German 
Empire,  of  whose  judges  at  first  half,  afterwards  all,  are  to 
be  Doctors  of  the  Civil  Law.  That  Roman  Law  should  revive 
in  southern  France,  in  Italy,  in  Spain,  where  the  provincials 
had  once  stood  thick  as  the  standing  corn,  seems  natural,  and, 
perhaps,  inevitable;  that  it  should  invade  the  very  home  of 
Teutonism  is  nothing  less  than  a  tragedy.  Thus  did  Rome 
conquer  Germany,  a  thousand  years  after  the  Roman  Empire 
had  ceased  to  be.1  We  must  also  remember  that  Roman  Law 
effected  a  similar  triumph  in  distant  Scotland. 

See  the  process  described  by  Brunner,  in  Holtzendorff's  Encyklo- 
padie,  Part  I.  pp.  291-294,  and  Schroder,  Deutsche  Rechtsgeschichte, 
pp.  722-731.  • 


60   /.  BEFORE  THE  NORMAN  CONQUEST 

But  it  is  possible  to  exaggerate  the  triumph.  Neither  in 
Germany  nor  in  Scotland  did  the  "  reception  of  the  foreign 
law  "  wipe  out  the  other  laws.  At  the  end  of  the  Middle 
Ages,  the  Germans  have  a  maxim :  "  Town's  law  breaks 
land's  law,  land's  law  breaks  common  law."  It  is  only  when 
other  sources  fail,  that  we  resort  to  Roman  Law.  The  laws 
of  the  towns  play  a  great  part  in  the  history  of  Law.  The 
privileges  granted  by  the  town-charters  of  the  thirteenth 
century  have  borne  fruit,  and  developed  into  great  bodies  of 
municipal  law,  which  kings  and  emperors  have  to  respect. 
Upon  the  scanty  materials  of  charter  privileges  and  local 
customs,  the  Schoffengerichte  of  Germany,  the  cours 
d'echevins  of  France,  the  bailies'  courts  of  Scotland,  have 
built  up  elaborate  systems  of  local  law,  which  strive  to  main- 
tain exclusive  control  within  the  limits  of  their  jurisdiction. 
The  town  laws  of  Liibeck,  Hamburg,  Goslar,  Vienna,  and 
Magdeburg,  the  statuts  of  Avignon  and  Aries,  the  plaids  de 
d'echevinage  de  Reims,  the  Bjarkoratten  of  Scandinavia, 
are  among  the  most  important  monuments  of  law  in  the 
Middle  Ages.  But  it  is  very  significant  to  notice  that  none  of 
these  come  from  England.  Chartered  boroughs  there  were, 
of  course,  in  the  land  of  the  Common  Law,  and  some  of  them 
had  custumals  of  their  own.  But  they  were  of  small  impor- 
tance ;  and  they  stood  much  in  fear  of  the  law  of  the  land.  It 
is  very  doubtful  whether  any  royal  judge  in  England  would 
have  accepted  the  maxim :  "  Town's  law  breaks  land's  law." 
Had  he  done  so,  it  would  have  been  with  great  reservations 
and  modifications.  The  victory  of  the  Common  Law  put  very 
narrow  bounds  to  the  growth  of  municipal  custom  in  England. 

Finally,  it  must  not  be  forgotten,  that  royal  legislation 
forms  an  important  factor  in  the  law  of  the  later  Middle 
Ages.  We  have  seen  what  became  of  it  in  England ;  how  it  was 
virtually  swallowed  up  in  the  national  law  which  dates  from 
the  end  of  the  thirteenth  century.  The  failure  of  the  Diets 
and  Etats  Generaux  of  the  Continent  left  the  new  idea  to 
work  out  its  own  developement.  The  success  of  the  feudal 
monarchy  in  France  gave  it  prominence  there.  As  each  new 
province  is  added,  by  diplomacy  or  annexation,  to  the  domain 
of  the  Crown,  the  royal  Ordonnances,  fettered  only  by  the 


0.     JENKS:    TEUTONIC    LAW  61 

curious  right  of  registration  claimed  by  the  Parlements,  grow 
in  number  and  importance.  As  new  spheres  of  legislation  — 
aliens,  marine,  literature  —  make  their  appearance,  they  fall 
into  the  royal  hands.  In  Germany,  the  elevation  of  the  great 
feudatories  into  independent  potentates  inspires  them  with 
similar  ambition;  whilst  the  failure  of  the  Empire  reduces 
the  importance  of  Imperial  legislation.  But  neither  in  France 
nor  in  Germany  can  the  royal  legislation  compare  with 
the  Parliamentary  legislation  of  England.  The  absolutism 
of  the  ancien  regime  is  often  misunderstood.  To  suppose 
that  the  subjects  even  of  Louis  XIV.  or  Frederick  the  Great 
were  helpless  in  the  hands  of  their  kings,  is  grotesque  and 
absurd.  Within  their  own  spheres  of  action,  these  monarchs 
were,  in  a  sense,  absolute.  But  those  spheres  had  their  limits. 
For  France  and  Prussia  were  not  countries  of  one  law,  but  of 
many  laws.  And  if  the  king  made  royal  law  without  let  or 
hindrance,  there  were  other  laws  which  he  could  not  touch. 
Despite  certain  faint  theoretical  doubts,  the  law  which  issued 
from  the  Parliament  at  Westminster  was  supreme  over  all 
customs  and  all  privileges;  it  covered  the  whole  area  of 
human  conduct  in  England,  at  least  after  the  Reformation. 
No  such  assertion  could  be  made  of  the  legislation  which  came 
from  the  Council  Chambers  of  Paris  and  Berlin. 

We  are  now  in  a  position  to  sum  up  the  results  of  our  long 
inquiry  into  the  history  of  Law.  And  if,  for  a  moment,  we 
seem  to  trespass  beyond  the  domain  of  Law,  upon  the  do- 
main of  anthropology,  we  need  only  trespass  upon  paths 
which  the  labours  of  trustworthy  guides  have  made  clear 
for  us. 

One  of  the  strongest  characteristics  of  primitive  man  is  his 
fear  of  the  Unknown.  He  is  for  ever  dreading  that  some  act 
of  his  may  bring  down  upon  him  the  anger  of  the  gods.  He 
may  not  fear  his  fellow  men,  nor  the  beasts  of  the  forest ;  but 
he  lives  in  perpetual  awe  of  those  unseen  powers  which,  from 
time  to  time,  seem  bent  on  his  destruction.  He  sows  his  corn 
at  the  wrong  season ;  he  reaps  no  harvest,  the  offended  gods 
have  destroyed  it  all.  He  ventures  up  into  a  mountain,  and 
is  caught  in  a  snow-drift.  He  trusts  himself  to  a  raft,  and  is 
wrecked  by  a  storm.  He  endeavours  to  propitiate  these 


62      /.'    BEFORE    THE    NORMAN    CONQUEST 

terrible  powers  with  sacrifices  and  ceremonies;  but  they  will 
not  always  be  appeased.  There  are  terrors  above  him  and 
around  him. 

From  this  state  of  fear,  custom  is  his  first  great  deliverer. 
To  speculate  on  the  origin  of  custom  is  beyond  our  province ; 
we  note  only  its  effects.  And  these  are  manifest.  What  has 
been  done  once  in  safety,  may  possibly  be  done  again.  What 
has  been  done  many  times,  is  fairly  sure  to  be  safe.  A  new 
departure  is  full  of  dangers ;  not  only  to  the  man  who  takes 
it,  but  to  those  with  whom  he  lives,  for  the  gods  are  apt  to  be 
indiscriminate  in  their  anger.  Custom  is  the  one  sure  guide 
to  Law ;  custom  is  that  part  of  Law  which  has  been  discovered. 
Hence  the  reverence  of  primitive  societies  for  custom ;  hence 
their  terror  of  the  innovator.  Custom  is  the  earliest  known 
stage  of  Law ;  it  is  not  enacted,  nor  even  declared :  it 
establishes  itself,  as  the  result  of  experience. 

But,  in  all  these  societies  which,  for  want  of  a  better  term, 
we  call  "  progressive,"  there  are  two  forces  at  work  which 
tend  to  alter  custom.  As  man's  powers  of  reasoning  and 
observation  develope,  he  begins  to  doubt  whether  some  of  the 
usages  which  custom  has  established  are,  after  all,  quite  so 
safe  as  he  has  thought.  The  custom  of  indiscriminate  revenge 
is  perceived  to  lead  to  the  destruction  of  the  community  which 
practises  it.  The  custom  of  indiscriminate  slaughter  of  game 
is  seen  to  lead  to  hunger  and  starvation.  These  results  are, 
by  man's  growing  intelligence,  apprehended  to  be  the  judge- 
ment of  the  gods  upon  evil  practices,  no  less  than  the  thunder- 
storm and  the  earthquake.  So  the  custom  of  indiscriminate 
revenge  is  modified  into  the  blood  feud,  and,  later,  into  the  rule 
of  compensation  for  injuries.  The  horde  of  hunters,  living 
from  hand  to  mouth,  becomes  the  tribe  of  pastoralists, 
breeding  and  preserving  their  cattle  and  sheep;  and  the 
notion  of  a  permanent  connection  between  the  tribe  and  its 
cattle  becomes  slowly  recognized.  The  rudimentary  ideas  of 
peace  and  property  make  their  appearance. 

The  other  force  at  work  is  the  correlative  of  this.  If  old 
customs  are  laid  aside,  new  customs  must  be  adopted.  As  the 
terror  of  innovation  gradually  subsides,  as  it  is  found  that 
a  new  departure  does  not  always  call  down  the  anger  of  the 


2.     JENKS:    TEUTONIC   LAW  63 

gods,  new  practices  are  introduced,  and  are  gradually 
accepted.  Thus  new  custom  takes  the  place  of  old. 

Here  we  have  what  may  be  called  the  negative  and  the  posi- 
tive sides  of  Law.  Old  customs,  proved  by  experience  to  be 
bad,  are  discarded ;  new  customs,  likewise  proved  by  experi- 
ence to  be  good,  are  adopted.  But  it  is  not  to  be  expected 
that  all  should  work  smoothly.  In  every  community  there 
will  be  men  who  cling  to  the  old  bad  customs,  and  refuse  to 
accept  the  new.  There  will  likewise  be  men  who  rashly  desire 
to  innovate  beyond  the  limits  which  the  general  sense  of  the 
community  considers  safe.  Some  means  must  be  found  for 
keeping  these  exceptional  persons  in  check.  And  so  we  get 
the  appearance  of  those  assemblies  which  are  neither,  accord- 
ing to  modern  notions,  legislative,  nor  executive,  nor 
judiciary,  but  simply  declaratory.  They  declare  the  folk- 
right.  It  would  be  an  anachronism  to  say  that  they  made 
Law.  We  may  be  quite  sure  that  they  do  not  argue  questions 
of  expediency.  Not  until  an  old  custom  has  been  definitely 
condemned  by  the  consciousness  of  the  community,  do  they 
declare  it  to  be  bad  —  because,  in  effect,  it  has  ceased  to  be  a 
custom.  Not  until  a  new  practice  has  definitely  established 
itself  as  the  rule  of  the  community,  do  they  declare  it  to  be 
good.  So  little  do  they  claim  the  power  of  making  new  law, 
that  when  they  do,  in  fact,  sanction  a  new  custom,  they  prob- 
ably declare  it  to  be  of  immemorial  antiquity.  A  great  deal 
of  existing  custom  they  do  not  declare  at  all;  just  because 
there  is  no  dispute  about  it.  This  accounts,  as  we  have  said, 
for  the  fragmentary  character  of  such  early  records  of 
custom  as  we  possess.  Where  there  are  no  offenders,  there 
is  no  need  to  declare  the  custom.  The  Law  came  because 
of  offences. 

At  first,  as  we  have  said,  there  is  no  record  of  custom,  in 
the  modern  sense.  It  lives  in  the  consciousness  of  the  com- 
munity, and  is  declared,  if  necessary,  by  some  assembly,  more 
or  less  comprehensive.  But  the  influences  of  migration  and 
conquest  introduce  a  new  feature.  Brought  face  to  face 
with  new  circumstances,  the  community  feels  that  its  customs, 
to  which  it  clings  as  part  of  its  individuality,  are  in  danger 
of  being  lost.  It  may  have  invented  for  itself  some  rude 


64   /.'  BEFORE  THE  NORMAN  CONQUEST 

system  of  runes  or  other  symbols;  it  may,  and  this  is  more 
probable,  have  come  into  contact  with  some  higher  civiliza- 
tion which  possesses  a  superior  art  of  recording.  Such  is  the 
case  with  the  earliest  monuments  of  Teutonic  Law.  They 
are  not  even  written  in  Teutonic  speech;  and  this  fact  has 
misled  some  critics  into  supposing  that  the  Leges  Barba- 
rorum  are  really  new  sets  of  rules  imposed  by  an  alien 
conqueror.  But,  below  the  curious  Latin  of  the  Roman 
scribe,  it  is  easy  to  read  the  still  ruder  language  of  the 
Teutonic  folk.  The  famous  "  Malberg  glosses  "  of  the  Lex 
Salica  are  only  the  clearest  example  of  a  truth  which  may 
be  traced  in  all  the  Leges  Barbarorum.  One  has  but  to  turn 
to  the  glossaries  which  accompany  the  classical  editions,  to 
see  how  the  scribes  were  puzzled  by  hosts  of  strange  Teutonic 
phrases  for  which  they  could  find  no  Latin  equivalents.  The 
Anglo-Saxon  and  the  Scandinavian  Laws  are  transcribed  in 
their  native  tongues.  The  Leges  Barbarorum  are  not  enact- 
ments, but  records. 

For  all  this,  their  "  redaction  "  was  an  epoch  in  the  history 
of  Law.  It  threatened  to  make  permanent  what  before  was 
transitory,  to  stereotype  a  passing  phase.  It  remained  no 
longer  possible  to  deny  the  existence  of  a  custom  which  was 
recorded  in  black  and  white ;  it  was  difficult  to  say  that  a  new 
custom  was  old,  when  no  trace  of  it  appeared  on  the  official 
record.  And  yet,  customs  must  be  altered  if  communities  are 
to  progress ;  and  the  Teutonic  communities  were  progressive 
in  no  small  degree.  So  there  was  a  chance  for  a  new  kind 
of  Law;  a  Law  which  should  be  declared  by  the  conqueror. 
But  the  limited  character  and  short  duration  of  the  law  of 
such  a  conqueror  even  as  Charles  the  Great,  shows  that  the 
new  idea  at  first  met  with  little  success.  The  Law  of  the 
Church,  the  Law  of  the  Merchants,  the  Law  of  the  Fief,  and 
the  Roman  Law,  are  the  real  innovating  forces  which  trans- 
form the  folk-laws  into  the  law  of  medieval  Europe. 

Not  one  of  these  was  Law  in  the  Austinian  sense.  Th£ 
Canon  Law  posed  as  a  revelation,  and,  as  such,  was  thor- 
oughly in  harmony  with  primitive  ideas  of  Law.  That  which 
the  folk  discovered,  through  the  painful  process  of  experi- 
ence, to  be  the  will  of  the  unseen  Powers,  was  discovered  by 


2.     JENKS:    TEUTONIC   LAW  65 

Popes  and  Councils,  through  the  speedier  process  of  revela- 
tion. The  Canon  Law  did  not  profess  to  be  the  command  of 
men ;  it  professed  to  be  the  will  of  God.  The  Law  Merchant 
and  the  Feudal  Law  were,  in  appearance,  the  terms  of  many 
agreements  which  merchants  and  which  feudal  lords  and 
vassals  had  implicitly  bound  themselves  to  observe.  But,  at 
bottom,  they  were  not  very  different  from  customs  which,  as 
the  result  of  experience,  had  proved  to  be  those  under  which, 
so  men  thought,  the  business  of  trade  or  of  landowning 
could  be  best  carried  on.  The  Roman  Law  was  the  deliberate 
expression,  by  the  wisdom  of  ages,  of  that  right  reason 
which  men  were  coming  to  look  upon,  more  and  more,  as  the 
true  index  to  the  will  of  the  Unseen  Powers.  Its  origin  as 
the  command  of  the  Roman  Emperor  was  well-nigh  for- 
gotten ;  and  we  may  be  very  sure  that,  in  Western  Europe 
at  least,  it  was  not  enforced  by  the  will  of  those  successors  of 
Justinian  who  sat  upon  the  trembling  throne  of  Byzantium. 
Had  it  been  so,  the  Roman  Law  would  have  disappeared  for 
ever  when  Mahomet  II.  overthrew  the  Eastern  Empire.  But 
it  was  just  at  that  time  that  the  Roman  Law  was  "  received  " 
in  Germany. 

We  have  travelled  far,  and  as  yet  have  seen  no  justification 
for  the  Austinian  theory,  that  Law  is  the  command  of  the 
State.  As  we  said  before,  the  first  time  that  this  theory 
becomes  approximately  true,  is  when  the  English  Parliament 
is  established  at  the  close  of  the  thirteenth  century.  This  is 
the  crowning  work  of  England  in  the  history  of  Law.  But 
it  is  possible  to  overrate  its  effect.  The  great  virtue  of  the 
English  Parliamentary  scheme  was,  that  it  enabled  the  expo- 
nents of  all  the  customs  of  the  realm  to  meet  together  and 
explain  their  grievances.  If  we  glance  at  the  Rolls  of  the 
English  Parliament,  we  shall  find  that  the  great  bulk  of  the 
petitions  which  are  presented  during  the  first  two  hundred 
years  of  its  existence,  'are  complaints  of  the  breach  of  old 
customs,  or  requests  for  the  confirmation  of  new  customs 
which  evil-disposed  persons  will  not  observe.  These  petitions, 
as  we  know,  were  the  basis  of  the  Parliamentary  legislation 
of  that  period.  What  is  this  but  to  say  that  the  Parliament 
was  a  law-declaring,  rather  than  a  law-making  body?  Some- 


66       /.     BEFORE    THE    NORMAN    CONQUEST 

times,  indeed,  the  Parliament  did  make  very  new  law.  It 
made  the  Statute  of  Uses,  in  defiance  of  a  long-established 
custom.  We  happen  to  know  the  ostensible  objects  of  the 
statute;  for  its  framers  were  careful  to  record  them  in  the 
preamble  to  their  work.  They  were,  first,  to  prohibit  secret 
conveyances  of  land,  second,  to  put  an  end  to  bequests  of  land 
by  will.  The  formal  recognition  of  secret  conveyances  and 
the  formal  recognition  of  the  validity  of  bequests  of  land, 
were  the  direct  results  of  the  passing  of  the  statute.  The 
lesson  is  obvious.  The  English  Parliament  was  a  splendid 
machine  for  the  declaration  of  Law;  when  it  tried  to  make 
Law  it  ran  the  risk  of  ignominous  failure. 

The  truth  must  not  be  pressed  too  far,  but  a  truth  it  is, 
that,  even  now,  Law  is  rather  a  thing  to  be  discovered  than 
a  thing  to  be  made.  To  think  of  a  legislator,  or  even  a  body 
of  legislators,  as  sitting  down,  in  the  plenitude  of  absolutism, 
to  impose  a  law  upon  millions  of  human  beings,  is  to  conceive 
an  absurdity.  How  shall  such  a  law  be  enforced?  By  a 
single  ruler?  By  a  group  of  elderly  legislators?  By  a  few 
hundred  officials?  By  an  army?  We  know  the  power  of 
discipline;  and  we  may  grant  that  a  comparatively  small 
but  well-disciplined  army  can  control  an  immense  mass  of 
unorganized  humanity.  But  the  army  must  have  laws  too, 
and  how  are  these  to  be  enforced?  Perhaps  by  another  army? 

The  simple  truth  of  the  matter  appears  to  be  this.  The 
making  of  Law  is  a  supremely  important  thing ;  the  declar- 
ing of  Law  is  an  important,  but  a  very  different  thing.  Law 
is  made  unconsciously,  by  the  men  whom  it  most  concerns ; 
it  is  the  deliberate  result  of  human  experience  working  from 
the  known  to  the  unknown,  a  little  piece  of  knowledge  won 
from  ignorance,  of  order  from  chaos.  It  is  begun  by  the 
superior  man,  it  is  accepted  by  the  average  man.  But  it  will 
not  do  for  the  inferior  man  to  spoil  the  work  of  his  betters, 
by  refusing  to  conform  to  it.  So  Law  must  be  declared,  and, 
after  that,  enforced.  This  declaration  and  enforcement  are 
the  work  of  the  official  few,  of  the  authorities  who  legislate 
and  execute.  There  was  plenty  of  Law  in  the  Middle  Ages; 
but  it  was,  for  the  most  part,  ill-declared  and  badly  enforced. 
The  great  problem  which  lay  before  the  statesmen  of  the 


2.     JENKS:    TEUTONIC   LAW  67 

Middle  Ages  was  to  devise  a  machine  which  should  declare  and 
enforce  Law,  uniformly  and  steadily.  The  supreme  triumph 
of  English  statesmanship  is,  that  it  solved  this  problem  some 
five  hundred  years  before  the  rest  of  the  Teutonic  world.  By 
bringing  together  into  one  body  representatives  of  those  who 
made  her  laws,  by  confronting  them  with  those  who  could 
declare  and  enforce  them,  England  was  able  to  knovs  what  her 
law  was,  to  declare  it  with  certain  voice,  and  to  enforce  it 
thoroughly  and  completely. 


SYNOPTIC    TABLE    OF    SOURCES1 

NOTES 

1.  There  has  been  no  attempt  on  the  part  of  the  compiler  to  attain 
uniformity  of  spelling  or  nomenclature.     In   each  case  the  source  has 
been  indicated  by  its  popular  title,  which,  it  need  hardly  be  said,  is  sel- 
dom of  official  origin.     The  dates  assigned  to  the  various  items  are  those 
generally  accepted  by  the  leading  specialists. 

2.  A  title  in  italics  indicates  that  the  source  was  originally  the  work 
of  a  private  composer. 

3.  A  title  between  square  brackets,  [     ],  indicates  that  the  source  does 
not  survive  in  its  original  form. 


1  The  List  of  Principal  Sources,  which  is  made  to  precede  this 
Synoptic  Table  in  the  author's  original  arrangement  has  been  trans- 
ferred to  Volume  II  of  this  Collection,  under  the  first  topic,  Sources 
of  Legal  History.  The  List  gives  the  publications  and  editions  in  which 
can  be  found  the  principal  materials  for  mediaeval  European  legal 
history. — EDS. 

69 


70     /.     BEFORE    THE    NORMAN    CONQUEST 


| 

2 

Q 

a 

o 

g 

• 

d 

8 

a 

1 

z 

S5 

1 

2 

• 

8 

'sf 

_r. 

• 

p 

« 

4 

a 

^ 

i 

i*  1 

6 

^ 

FRANCE. 

sr 

S  rf 

RANGE. 

It  i. 

2—      £•= 

Hilperici  ( 

i  - 

L 

J^, 

M 

3         m 

^ 

(j         M 

r^ 

S  5  — 

—  o 

•     JO. 

tf 
P 

tf 

«        (2u 

•o 

K 

3 

55 

I 

°!          2. 

H 
W 

GERMANY. 

1 

fc 

w 

GERMANY. 

•o'g 
§1 

y 

f 

Lex  Ribuaria 
I.). 

Is 
if 

I8 

.2       5 
1  •    % 

l\ 

d 

a' 

| 

M 

< 

ti 

| 

— 
Pc< 

I 

h-  ( 

CC 

5 

ll 

•o  c 

M 

Q 

4g 

1 

Q 

M 

3 

H 

•i 

a 

d 

d 

3 

fc 

o 

3 

I 

o 

M 

\ 

Q 

•«»* 

* 

»ucn0 

M 

M 

CO 

J 

JENKS:    TEUTONIC    LAW 


71 


fc 

W 


'is 

f-s, 


• 

2.2 

31 


r 


fl-^      s  -' 

1HJ  II!  M  M 


72     /.     BEFORE    THE    NORMAN    CONQUEST 


i 

95 

8 

3 

d 

55 

8 

Q 

H 

u 

1 

IP 

ft 

•I 

3  .-     . 

• 

•S 

IM 

B 

2 

6 

if 

s- 

« 

4 

•g 

> 

.2            n 

-            IE 

ll  11 

E 

5-        <i 

1?          i'g 

la  f» 

§ 

"1        M° 

IJ        S'a 

Si   2| 

B 

V<7            *»  H 

^                        cw 

0 

1-1                 iJ 

W                    Q 

Q        Q 

d 

5 

N                 "1 

4 

s5   '5               s               •                                     •- 

S  &        1,                                ^! 
1  •§'§        wl       3                         J 

.  i 

£ 

I'll       1?      I                    f! 

3    B                   M                  •                                                   U 

A                        J?  S  R                 !»             &_!o 

Q 

9 

d 
4 

Q 

• 

rs 

o 

M 

d 

< 

M»U*n5                  _i 

ci 

ro 

JENKS:    TEUTONIC    LAW 


73 


1 

I 

i 

•1  § 

^r 

82 

Haristallense  of  Cha 
tice.  1  Extended  tc 

|l                      j                                                                     1 

f1        S                        S1. 

ac? 

3  0 

_  u  a 

1                                                                  S 

fl 

£l 

H 

r 

**      jiii    |si  is    jji  ii  ^ 

1             1  1         ss=^       .lo       s  ii     "^       .2 

5      -4                          *  „<"                       u     .                      %  3                  V  i          .           .0  <>             uiS 

6               ^             <3**         <3~*      -<3*""     <3       <3 

gS                                                                     a?           o5"         & 
ex                                                                                                             Ip;                •»             K 

• 

•^ 

74  /.  BEFORE  THE  NORMAN  CONQUEST 


SCANDINAVIA, 

(t                                                                                       ., 

SPAIN. 

"8 

m 

0 

.1           -S 

FRANCE. 

~1         a                      *   i         *  * 

2  2              .                                                     e'5  «  i 
•  1                                        •  *            8  j  a  | 
|  f           T                              f    I            3£  -5  a 

S.ii|1| 
(JIJIJ 

H?     i             !  i      liil 

I    |    £fl 

GERMANY. 

if.   fl  III  f!  i  !  1  flll!!! 
jl 

1 

s:!!f     II-1     s       1  H1   £|{! 

II 

ITALY. 

g-sg.  .   •--"  $*                         --      S«  SSB    -        "itSa 

ifty  ^i         i  if  §^    -iia 

i-wSi    a|                g-  |"§£ 

^  £4  i«  .  iS                          fi  -  ^8  <0            Cg  sg 

Iff  ill  If              M^lifl      -s-i-iS 

2  11  -a.]!  -S.-S                      -al-a-s-al          '|§  -|^ 
<3  (3    (3       (3                          uuu             Of3 

J  3) 
1*              P 

^1      J     5                    111          |£ 

o> 

SCOTLAND. 

0 

ENGLAND. 

J 

•nun? 

K 


2.     JENKS:    TEUTONIC   LAW 


75 


-   — 

il  2  a' 
•a  82 
r  81 
•3  2S 

-  ta'| 

Ir 


g  .  8 

.T  2 


-          s 

o    C  iB    « 


I  -^ 

ill  ill  pi  til; 

o       o       w 


If 
1J 

F 


Capitulare 
nense.  (R 
beries.  Reg 
tion  of  r 


to 


L     BEFORE    THE    NORMAN    CONQUEST 


?! 
u 


* 


.  - 


1 


«•§  =32     -Ct     -Cl     xSf= 

Ss       1  PS  a-s  al  a^ 


t  h  el  r 
Counse 
Woodstoc 


1-1 


I-S 


JENKS:    TEUTONIC    LAW 


77 


Ma 
Edi 


_,  - 

H  II  !JI  11  M 


Rtctitudintt 
fularum 
tonarum. 


to 


78      /.     BEFORE    THE    NORMAN    CONQUEST 


3 

| 

8 

-                                      " 

•<                                               s 

SPAIN. 

•o 
o 

3 

a 

H 

FRANCE. 

Q 

GERMANY. 

|                                1     | 

1                                                                 *          *J 

•S    11 
i         1                         1    2 

ll 

1   ll    |£:3 

B  (S      w 

0          I.                                                                                           fcf 

<    :s          S.                              2  -• 

3- 

ITALY. 

^          ^_-& 

j 

3     ?           5                                s 

t" 

SCOTLAND. 

**  M 

•*te 

•H 

Q 

ENGLAND. 

is  AH   i    tg'ii  ^  s 

a&     S8,      |tf    |S«    1     - 

4  lifl  H  ;?ft.  I  ** 

0           O                 »4          S                 OS 

1     ]|i 

1  ill* 
a  -i-8- 

d8         "8                                             'S 
4  8         Ji                                              » 

•»M«n£ 

M 

a 

- 

U 

K 
H 

- 
- 


2.     JENKS:    TEUTONIC    LAW 


79 


^ 


1*3 


-2  -3 


oa 


1! 


11 1 

-Trl 


it  * 

1  II  t 

I  a  3 

t   8,5.8 


80     /.     BEFORE    THE    NORMAN    CONQUEST 


DINAVIA. 

-        M        t»        e        * 

1  .  •=     5     •*  la 

If  sf  If  if  || 

•*|    if*    tL°    3  8    1  8 

>                 * 

Z 

5!        &        0        •/>        $ 

>-,          b.          S" 

8 

Q  0 

!     f 

SPAIN. 

| 

j 

Q 

•<                             S 

f 

FRANCE. 

•o                     a            8,§B« 

eg               £•$      .S  *  gC? 
=«               30.      I«»B 
O                  •         n 

3  a                                       5fl   g-—  — 
ui                                               co.     u  U 

o         £                  ...         8 

i               f  n 

GERMANY. 

_.  -5                       -i    £  .2.8 

&V  O     S                     P                i*     rt  3 
3  «  £  4?            I   1     S   S-f 
K    *"»    ^             °    a    i?    S| 
H  -<;      <o             •£  -G     £  X" 

2      o         -^     .S-g     „     |      -a    -: 

ilil  l^hl  8  !  1 

W°m">.|'^      to""       S      c?        ^3 

3~~     si     Half 

.2                    *"       a      —    4> 

a         -g        »      -a 
-           s        -=.*""*" 

ITALY. 

1              I   Jl 

•S                °S    -S  a 

•3                o    -5  -B,a 

C                                                        Cop 

1                   1  :cs 

(A                                        H  M 

g^        1 

GO                        0 

Q<g              R    s  a 

MM                                              IA 

SCOTLAND. 

- 

1 

CO 

Q 

•i 

ENGLAND. 

1 

1 

l          i 

11 

<                          " 

s                        3 

•«""* 

- 

* 

tf 
& 

H 
fc 


fc 

M 
W 
h 

tf 
i—  i 

ffi 


.     JENKS:    TEUTONIC   LAW 


81 


Kjabenliamnr 
Bierkent  (Den- 
mark). 

s  i  s?      i  if  a 

-    3   «  J;                -a,i    3  g  a-tj 
2-=-  8  "ifS-a              .s-a    SB  s  j?  |~ 

SI  -  sill            T  5i  I 

•*  S  &    "'S  >                   j>  «     "§<S  $f  5 

.s<2.  f  ±w<a              |a    i  I  Kfi 

(^     t)    «                             pi!         S,°  g 

£          i                    %a~            »            *• 
•i        5                     »|3             «            ^ 

&             sfl      -.    5- 
3    *        s1£     '1   If 

it  it   in  a  a 

sa     A            o            DO 

| 

«       «                  i1      £    s 

i  1       1       I 

Fuero  Real. 

1 

Commencement  of 
the  "Olim." 

V              U      •              *             *"    X    "*             O             %»*             VU) 

no      -am       u       °s-"      -a      "*"3     -o  3 
faSrt°               Jo         -° 
§     sJs     -S      L:M     s^  |J     .2g| 

i  a  ill  1  1  1"=  M  t|  |s   .sl| 

•g1?  >§*J  l'&  |o,«5i  -ow  3ft;     "Saw 
o    o       o     o          w    ^       o 

i  i  -  t,  * 

ll^iilj  Ji 

-•2    «  «    c  K,  CJ        v  1 
•|i{«ffi|       I! 

oH  •g.S  ».  j  >.fi       gg 

O       O      O      O            *3 

S 

O            O                  r*          00                        O           O                  V) 

w>      \5           o        *o                ll        B 

OIO 

a 

ti 

fl^ 

WO 

p 

•3                                                             V            V              >          *O 

M.J  -g    *    a 

B    1    43            S1  II  I    w 

,||1    1            alii  »    J-t 

|!§I  1      ^IJ|.JS 

1 

s* 

!»  t  J        1  f  I1 

Constitutio  de  jure 

|       1.1                     *3 
^       ^r"  §                       §o 

^            -o^  -S                                      <  o 

•3        •S.'S  -2                        -a| 

ill 

g  S  g  .                          =2 

to           («      <n                                   cJ5 

» 

Iff                  1 

I        | 
el       ^ 

•*S'I           3  «' 

<«M              .«  > 

&s       &s 
J        ^ 

"C                                                          trt 

s                            ^ 

U.  J                                                                      V-1- 
"S                                                                             V 

Ij                                  I'l 
i/5                                         co 

I    i    I    rf  tl    2     .  §    •• 

a  »  ^  !  *di  I  i  -  u 

•s.  "3   -s_.  l^s       f:   I 

tl         .        y^wwjgc^gd.^    .g- 

^*itt;*§   ^S    «    **c*5    f^rt^'o    t§ 
2  u   2                 i   5--£    t!  **   rt    „$  «=  5 

2  w  3  a  ««  «  «  e?  .!:<  -3  ^«  ga 

WWOTWW          OO*HO 

•s"                           ? 

tJ.JJ*0?0000*                                  ^^S* 

fO 

82     /.     BEFORE    THE    NORMAN    CONQUEST 


« 
0 


1 

o 


:•* 

a  X     .. 


8,       S. 

i*l  **1 


43: 


8.     JENKS:    TEUTONIC   LAW 


83 


ft 

& 


Mil 


¥    .0* 


's 

' 


"S-2    . 

'ill 


s^ 

I" 


ij  ii 


ii  fi 

l«  N 

O       ^5 


S? 


§?, 


1    1 


S     5« 


£  . 

II 

"1 

M 


I        * 
-5        o 

U  i! 


to          « 


84     /.     BEFORE    THE    NORMAN    CONQUEST 


H 


Bd 

n'8 

o&. 


J* 

l-s 


an 
0 


if:-,  -s 


!i-<a  T 

O  O 


£  K 

•S     "» 


•»»nno 


0.     JENKS:    TEUTONIC   LAW 


85 


•8                  -S^       g  «J    8  5  3    3  . 

Ji§    i    «|  v  ws 

s2    §     fil  ill  i"! 

|l§      i      111  i&§  |48 

o              o         o         S         o 

i?         ?      1        f 

1           i       ?       1       1 

•O 

*uS           °       5 
Hi          S§    I"S 

so  a        "a  -50 

b4               u       Ct( 

1 

1       1   1 

i  11  1     !    1!  i  i 

I"ta    Soo   ^                   3  §           ""  §  I1  "s    3 

S-e°     3-SS     t3                         nS              tS-SS    -     « 
(o           f>            <                          w                   "!            <;     tn 

j|s'     Ijg 

§                         1                         I                  1 

f             11 

f!  14 

en        : 

f  f 

•      CO 

* 

86     /.     BEFORE    THE    NORMAN    CONQUEST 


33i3'3- 


30     30*    33     S  2     33     s 

H   o<   oS    oH   o<   o 
OOOOO 


3C     3o     3P    2 

o<   o*a   oPa    g 
OOOo 


O 

•to 


li 


••§    x°* 

° 


m  I*J 


i 


1- 


?..    JENKS:    TEUTONIC    LAW 


87 


•g-S 


is  si  iig 
sj  si  si 

Ok,      O   O      O  O 

•go  -2«  -gS 
o    o    o 


-0  ^  _« -o  «j  S  a 

II  Ills'!  II 

•gw  £2  £25  oO 
o     5.    G.       o 


3.     ENGLISH    LAW    BEFORE    THE    NORMAN 
CONQUEST 1 

BY  SIR  FREDERICK  POLLOCK,  BART.2 

FOR  most  practical  purposes  the  history  of  English  law 
does  not  begin  till  after  the  Norman  conquest,  and  the 
earliest  things  which  modern  lawyers  are  strictly  bound  to 
know  must  be  allowed  to  date  only  from  the  thirteenth  cen- 
tury, and  from  the  latter  half  of  it  rather  than  the  former. 
Nevertheless  a  student  who  does  not  look  farther  back  will  be 
puzzled  by  relics  of  archaic  law  which  were  not  formally  dis- 
carded until  quite  modern  times,  and  he  may  easily  be  misled 
by  plausible  but  incorrect  explanations  of  them,  such  as  have 
been  current  in  Blackstone's  time  and  much  later.  In  rare 
but  important  cases  it  may  be  needful  for  advocates  and 
judges  to  transcend  the  ordinary  limits. of  the  search  for 
authority,  and  trace  a  rule  or  doctrine  to  its  earliest  known 
form  in  this  country.  When  this  has  to  be  done  it  is  quite 
possible  that  wrong  ancient  history  may  lead  to  the  declara- 
tion of  wrong  modern  law.  This  happened  in  at  least  one 

'This  essay  was  published  in  the  Law  Quarterly  Review,  1898, 
volume  XIV,  pp.  291-306. 

1  Editor  of  the  Law  Quarterly  Review;  M.  A.  Trinity  College  (Cam- 
bridge) ;  Barrister-at-law  1871 ;  Professor  of  Jurisprudence,  University 
College  (London)  1882-83;  Professor  of  Common  Law  in  the  Inns  of 
Court  1884-1890;  Corpus  Professor  of  Jurisprudence  at  Oxford  1883- 
1903;  Fellow  of  the  British  Academy  1902. 

Other  Publications:  Principles  of  Contract,  1876;  Law  of  Torts, 
1877,  Digest  of  the  Law  of  Partnership,  1877;  The  Land  Laws,  1882; 
Essays  in  Jurisprudence  and  Ethics,  1882;  Possession  in  the  Common 
Law  (with  Mr.  Justice  Wright),  1888;  Oxford  Lectures,  1890;  Intro- 
duction to  the  History  of  the  Science  of  Politics,  1890;  Law  of  Fraud 
in  British  India,  1894;  History  of  English  Law  to  the  Time  of  Ed- 
ward I  (with  Professor  Maitland),  1895;  First  Book  of  Jurisprudence, 
1896;  Expansion  of  the  Common  Law,  1904;  Introduction  and  Notes 
to  Maine's  Ancient  Law,  1906. 

88 


3.     POLLOCK:   ANGLO-SAXON   LAW          89 

celebrated  case  within  the  Queen's  reign,  in  which,  as  it  is  now 
hardly  possible  to  doubt,  the  House  of  Lords  reversed  the 
ancient  law  of  marriage  accepted  on  the  authority  of  the 
Church  in  England  as  well  as  in  the  rest  of  Western  Christen- 
dom, being  misguided  by  early  documents  of  which  they  did 
not  rightly  understand  either  the  authority  or  the  effect.1 
The  extreme  antiquities  of  our  law  may  not  be  often  required 
in  practice,  but  it  is  not  safe  to  neglect  them  altogether,  and 
still  less  safe  to  accept  uncritical  explanations  when  it  does 
become  necessary  to  consider  them. 

Anglo-Saxon  life  was  rough  and  crude  as  compared  not 
only  with  any  modern  standard  but  with  the  amount  of  civil- 
ization which  survived,  or  had  been  recovered,  on  the  Conti- 
nent. There  was  very  little  foreign  trade,  not  much  internal 
traffic,  nothingrlike  industrial  business  of  any  kind  on  a  large 
scale,  and  (it  need  hardly  be  said)  no  system  of  credit.  Such 
conditions  gave  no  room  for  refined  legal  science  applied  by 
elaborate  legal  machinery,  such  as  those  of  the  Roman 
Empire  had  been  and  those  of  modern  England  and  the 
commonwealths  that  have  sprung  from  her  were  to  be.  Such 
as  the  men  were,  such  had  to  be  the  rules  and  methods 
whereby  some  kind  of  order  was  kept  among  them.  Our 
ancestors  before  the  Norman  Conquest  lived  under  a  judicial 
system,  if  system  it  can  be  called,  as  rudimentary  in  substance 
as  it  was  cumbrous  in  form.  They  sought  justice,  as  a  rule, 
at  their  primary  local  court,  the  court  of  the  hundred,  which 
met  once  a  month,  and  for  greater  matters  at  a  higher  and 
more  general  court,  the  county  court,  which  met  only  twice 
a  year.2  We  say  purposely  met  rather  than  sat.  The  courts 
were  open-air  meetings  of  the  freemen  who  were  bound  to 
attend  them,  the  suitors  as  they  are  called  in  the  terms  of 
Anglo-Norman  and  later  medieval  law ;  there  was  no  class  of 
professional  lawyers';  there  were  no  judges  in  our  sense  of 
learned  persons  specially  appointed  to  preside,  expound  the 
law,  and  cause  justice  to  be  done;  the  only  learning  available 

1  See  Pollock  and  Maitland,  Hist.  Eng.  Law,  ii.  367  sqq. 

1  There  were  probably  intermediate  meetings  for  merely  formal  busi- 
ness, which  only  a  small  number  of  the  suitors  attended:  see  P.  &  M., 
Hist.  Eng.  L.  i.  526. 


90     /.     BEFORE    THE    NORMAN    CONQUEST 

was  that  of  the  bishops,  abbots,  and  other  great  ecclesiastics. 
This  learning,  indeed,  was  all  the  more  available  and  influen- 
tial because,  before  the  Norman  Conquest,  there  were  no 
separate  ecclesiastical  courts  in  England.  There  were  no 
clerks  nor,  apparently,  any  permanent  officials  of  the  popular 
courts;  their  judgments  proceeded  from  the  meeting  itself, 
not  from  its  presiding  officer,  and  were  regularly  preserved 
only  in  the  memory  of  the  suitors.  A  modern  student  or  man 
of  business  will  at  first  sight  wonder  how  this  rude  and 
scanty  provision  for  judicial  affairs  can  have  sufficed  even  in 
the  Dark  Ages.  But  when  we  have  reflected  on  the  actual 
state  of  Anglo-Saxon  -society,  we  may  be  apt  to  think  that  at 
times  the  hundred  and  the  county  court  f  otmd  too  little  to  do 
rather  than  too  much.  The  materials  for  what  we  now  call 
civil  business  practically  did  not  exist.  •* 

There  is  now  no  doubt  among  scholars  that  the  primary 
court  was  the  hundred  court.  If  the  township  had  any 
regular  meeting  (which  is  quite  uncertain),  that  meeting  was 
not  a  judicial  body.  The  King,  on  the  other  hand,  assisted 
by  his  Council  of  wise  men,  the  Witan,1  had  a  superior 
authority  in  reserve.  It  was  allowable  to  seek  justice  at  the 
king's  hands  if  one  had  failed,  after  due  diligence,  to  obtain  it 
in  the  hundred  or  the  county  court.  Moreover  the  Witan 
assumed  jurisdiction  in  the  first  instance  wliere  land  granted 
by  the  king  was  in  question,  and  perhaps  in  other  cases  where 
religious  foundations  or  the  king's  great  men  were  concerned. 
Several  examples  of  such  proceedings  are  recorded,  recited  as 
we  should  say  in  modern  technical  speech,  in  extant  land- 
charters  which  declare  and  confirm  the  result  of  disputes, 
and  therefore  we  know  more  of  them  than  we  do  of  the 
ordinary  proceedings  in  the  county  and  hundred  courts,  of 
which  no  written  record  was  kept.  But  they  can  have  had 
very  little  bearing,  if  any,  on  the  daily  lives  of  the  smaller 
folk.  In  important  cases  the  county  court  might  be  strength- 
ened by  adding  the  chief  men  of  other  counties ;  and,  when 
thus  reinforced,  there  is  hardly  anything  to  distinguish  it 

|  There  is  more  authority  for  this  short  form  than  for  the  fuller 
Witena-Gem6t  (not  witendpemot,  as  sometimes  mispronounced  by  per- 
sons ignorant  of  Old-English  inflexions). 


3.     POLLOCK:    ANGLO-SAXON    LAW          91 

from  the  Witan  save  that  the  king  is  not  there  in  per- 
son.1 

Some  considerable  time  before  the  Norman  Conquest,  but 
how  long  is  not  known,  bishops  and  other  great  men  had 
acquired  the  right  of  holding  courts  of  their  own  and  taking 
the  profits  in  the  shape  of  fines  and  fees,  or  what  would  have 
been  the  king's  share  of  the  profits.  My  own  belief  is  that 
this  began  very  early,  but  there  is  no  actual  proof  of  it. 
Twenty  years  after  the  Conquest,  at  any  rate,  we  find  private 
jurisdiction  constantly  mentioned  in  the  Domesday  Survey, 
and  common  in  every  part  of  England :  about  the  same  time, 
or  shortly  afterwards,  it  was  recognized  as  a  main  ingredient 
in  the  complex  and  artificial  system  of  feudalism.  After 
having  grown  in  England,  as  elsewhere,  to  the  point  of 
threatening  the  king's  supremacy,  but  having  happily  found 
in  Edward  I  a  master  such  as  it  did  not  find  elsewhere  before 
the  time  of  Richelieu,  the  manorial  court  is  still  with  us  in  a 
form  attenuated  almost  to  the  point  of  extinction.  It  is  not 
material  for  the  later  history  of  English  law  to  settle  exactly 
how  far  the  process  of  concession  or  encroachment  had  gone 
in  the  time  of  Edward  the  Confessor,  or  how  fast  its  rate  was 
increasing  at  the  date  of  the  Conquest.  There  can  be  no 
doubt  that  on  the  one  hand  it  had  gained  and  was  gaining 
speed  before  "  the  day  when  King  Edward  was  alive  and 
dead,"  2  or  on  the  other  hand  that  it  was  further  accelerated 
and  emphasized  under  rulers  who  were  familiar  with  a  more 
advanced  stage  of  feudalism  on  the  Continent.  But  this 
very  familiarity  helped  to  make  them  wise  in  time ;  and  there 
was  at  least  some  foreshadowing  of  royal  supremacy  in  exist- 
ing English  institutions.  Although  the  courts  of  the  hundred 
and  the  county  were  not  the  king's  courts,  the  king  was  bound 
by  his  office  to  exercise  some  general  supervision  over  their 
working.  He  was  represented  in  the  county  court  by  the 
sheriff ;  he  might  send  out  commissioners  to  inquire  and  report 
how  justice  was  done,  though  he  could  not  interfere  with  the 

'Such  a  court,  after  the  Conquest,  was  that  which  restored  and  con- 
firmed the  rights  of  the  see  of  Canterbury  on  Penenden  Heath:  but  it 
was  held  under  a  very  special  writ  from  the  king. 

1  The  common  form  of  reference  in  Domesdav  Book. 


92   /.  BEFORE  THE  NORMAN  CONQUEST 

actual  decisions.  The  efficiency  of  these  powers  varied  in  fact 
according  to  the  king's  means  and  capacity  for  exercising 
them.  Under  a  wise  and  strong  ruler  like  Alfred  or  ^thel- 
stan  they  might  count  for  much;  under  a  feeble  one  like 
^Ethelred  they  could  count  for  very  little. 

A  modern  reader  fresh  to  the  subject  might  perhaps  expect 
to  find  that  the  procedure  of  the  old  popular  courts  was  loose 
and  informal.  In  fact  it  was  governed  by  traditional  rules 
of  the  most  formal  and  unbending  kind.1  Little  as  we  know 
of  the  details,  we  know  enough  to  be  sure  of  this;  and  it 
agrees  with  all  the  evidences  we  have  of  the  early  history  of 
legal  proceedings  elsewhere.  The  forms  become  not  less  but 
more  stringent  as  we  pursue  them  to  a  higher  antiquity; 
they  seem  to  have  not  more  but  less  appreciable  relation  to 
any  rational  attempt  to  ascertain  the  truth  in  disputed 
matters  of  fact.  That  task,  indeed,  appears  to  have  been 
regarded  as  too  hard  or  too  dangerous  to  be  attempted  by 
unassisted  human  faculties.  All  the  accustomed  modes  of 
proof  involved  some  kind  of  appeal  to  supernatural  sanctions. 
The  simplest  was  the  oath  of  one  of  the  parties,  not  by  way 
of  testimony  to  particular  facts,  but  by  way  of  assertion  of 
his  whole  claim  or  defence;  and  this  was  fortified  by  the 
oaths  of  a  greater  or  less  number  of  helpers,  according  to  the 
nature  of  the  case  and  the  importance  of  the  persons  con- 
cerned, who  swore  with  him  that  his  oath  was  true.2  He  lost 
his  cause  without  a  chance  of  recovery  if  any  slip  was  made 
in  pronouncing  the  proper  forms,  or  if  a  sufficient  number  of 
helpers  were  not  present  and  ready  to  make  the  oath.  On  the 
other  hand  the  oath,  like  all  archaic  forms  of  proof,  was  con- 
clusive when  once  duly  carried  through.  Hence  it  was  almost 
always  an  advantage  to  be  called  upon  to  make  the  oath  of 
proof,  and  this  usually  belonged  to  the  defendant.  "  Gain- 
saying is  ever  stronger  than  affirming  ....  Owning  is 

1  There  were  variations  in  the  practice  of  different  counties  after  the 
Conquest  (Glanv.  xii.  23),  and  therefore,  almost  certainly,  before.  We 
know  nothing  of  their  character  or  importance,  but  I  should  conjecture 
that  they  were  chiefly  in  verbal  formulas. 

*  Advanced  students  will  observe  that  this  is  wholly  different  from 
the  decisory  oath  of  Roman  and  modern  Romanized  procedure,  where 
one  party  has  the  option  of  tendering  the  oath  to  the  other  alone,  and 
is  bound  by  the  result 


8.     POLLOCK:   ANGLO-SAXON   LAW          93 

nearer  to  him  who  has  the  thing  than  to  him  who  claims." 
Our  modern  phrase  "  burden  of  proof  "  is  quite  inapplicable 
to  the  course  of  justice  in  Anglo-Saxon  courts:  the  benefit  or 
"  prerogative "  of  proof,  as  it  is  called  even  in  modern 
Scottish  books,  was  eagerly  contended  for.  The  swearer  and 
his  oath-helpers  might  perjure  themselves,  but  if  they  did 
there  was  no  remedy  for  the  loser  in  this  world,  unless  he  was 
prepared  to  charge  the  court  itself  with  giving  false  judg- 
ment. Obviously  there  was  no  room  in  such  a  scheme  for  what 
we  now  call  rules  of  evidence.  Rules  there  were,  but  they 
declared  what  number  of  oath-helpers  was  required,  or  how 
many  common  men's  oaths  would  balance  a  thegn's.  In  the 
absence  of  manifest  facts,  such  as  a  fresh  wound,  which  could 
be  shown  to  the  court,  an  oath  called  the  "  fore-oath  "  was 
required  of  the  complainant  in  the  first  instance  as  a  security 
against  frivolous  suits.  This  was  quite  different  from  the 
final  oath  of  proof. 

Oath  being  the  normal  mode  of  proof  in  disputes  about 
property,  we  find  it  supplemented  by  ordeal  in  criminal 
accusations.  A  man  of  good  repute  could  usually  clear 
himself  by  oath;  but  circumstances  of  grave  suspicion  in 
the  particular  case,  or  previous  bad  character,  would  drive 
the  defendant  to  stand  his  trial  by  ordeal.  In  the  usual  forms 
of  which  we  read  in  England  the  tests  were  sinking  or  float- 
ing in  cold  water,2  and  recovery  within  a  limited  time  from 
the  effects  of  plunging  the  arm  into  boiling  water  or  handling 
red-hot  iron.  The  hot-water  ordeal  at  any  rate  was  in  use 
from  an  early  time,  though  the  extant  forms  of  ritual,  after 
the  Church  had  assumed  the  direction  of  the  proceedings,  are 
comparatively  late.  Originally,  no  doubt,  the  appeal  was  to 
the  god  of  water  or  fire,  as  the  case  might  be.  The  Church 
objected,  temporized,  hallowed  the  obstinate  heathen  customs 
by  the  addition  of  Christian  ceremonies,  and  finally,  but  not 
until  the  thirteenth  century,  was  strong  enough  to  banish 
them.  As  a  man  was  not  put  to  the  ordeal  unless  he  was 

1  ^thelr.  ii.  9. 

*  There  is  a  curious  French  variant  of  the  cold-water  ordeal  in  which 
not  the  accused  person,  but  some  bystander  taken  at  random,  is  im- 
mersed: .1  do  not  know  of  any  English  example. 


94  /.  BEFORE  THE  NORMAN  CONQUEST 

disqualified  from  clearing  himself  by  oath  for  one  of  the 
reasons  above  mentioned,  the  results  were  probably  less  remote 
from  rough  justice  than  we  should  expect,  and  it  seems  that 
the  proportion  of  acquittals  was  also  larger.  Certainly 
people  generally  believed  to  be  guilty  did  often  escape,  how 
far  accidentally  or  otherwise  we  can  only  conjecture.1  An- 
other form  of  ordeal  favoured  in  many  Germanic  tribes  from 
early  times,  notwithstanding  protest  from  the  Church,  and 
in  use  for  deciding  every  kind  of  dispute,  was  trial  by  battle : 
but  this  makes  its  first  appearance  in  England  and  Scotland 
not  as  a  Saxon  but  as  a  distinctly  Norman  institution.2  It 
is  hard  to  say  why,  but  the  fact  is  so.  It  seems  from  Anglo- 
Norman  evidence  that  a  party  to  a  dispute  which  we  should 
now  call  purely  civil  sometimes  offered  to  prove  his  case  not 
only  by  oath  or  combat,  but  by  ordeal,  as  the  court  might 
award.  This  again  suggests  various  explanations  of  which 
none  is  certain.8 

Inasmuch  as  all  the  early  modes  of  proof  involved  large 
elements  of  unknown  risk,  it  was  rather  common  for  the 
parties  to  compromise  at  the  last  moment.  Also,  since  there 
were  no  ready  means  of  enforcing  the  performance  of  a  judg- 
ment on  unwilling  parties,  great  men  supported  by  numerous 
followers  could  often  defy  the  court,  and  this  naturally  made 
it  undesirable  to  carry  matters  to  extremity  which,  if  both 
parties  were  strong,  might  mean  private  war.  Most  early 
forms  of  jurisdiction,  indeed,  of  which  we  have  any  knowl- 
edge, seem  better  fitted  to  put  pressure  on  the  litigants  to 
agree  than  to  produce  an  effective  judgment  of  compulsory 
force.  Assuredly  this  was  the  case  with  those  which  we  find  in 
England  even  after  the  consolidation  of  the  kingdom  under 
the  Danish  dynasty. 

Rigid  and  cumbrous  as  Anglo-Saxon  justice  was  in  the 

1  The  cold-water  ordeal  was  apparently  most  feared ;  see  the  case  of 
Ailward,  Materials  for  Hist.  St.  Thomas,  i.  156,  ii.  172;  Bigelow,  Plac. 
A.-N.  260.  For  a  full  account  see  Lea,  Superstition  and  Force. 

*  See  more  in  Xeilson,  Trial  by  Combat,  an  excellent  and  most  inter- 
esting monograph. 

*  Cases  from  D.  B.  collected  in  Bigelow,  Plac.  A.-N.,  40-44,  61.    Even 
under  Henry  II  we  find,  in  terms,  such  an  offer,  but  it  looks,  in  the  light 
of  the  context,  more  like  a  rhetorical  asseveration  —  in  fact  the  modern 
uj'en  mettrais  ma  main  au  feu"  —  than  anything  else:    op.  cttv  196. 


3.     POLLOCK:   ANGLO-SAXON    LAW          95 

things  it  did  provide  for,  it  was,  to  modern  eyes,  strangely 
defective  in  its  lack  of  executive  power.  Among  the  most 
important  functions  of  courts  as  we  know  them  is  compelling 
the  attendance  of  parties  and  enforcing  the  fulfilment  both  of 
final  judgments  and  of  interlocutory  orders  dealing  with  the 
conduct  of  proceedings  and  the  like.  Such  things  are  done  as 
of  course  under  the  ordinary  authority  of  the  court,  and  with 
means  constantly  at  its  disposal;  open  resistance  to  judicial 
orders  is  so  plainly  useless  that  it  is  seldom  attempted,  and 
obstinate  preference  of  penalties  to  submission,  a  thing  which 
now  and  then  happens,  is  counted  a  mark  of  eccentricity 
bordering  on  unsoundness  of  mind.  Exceptional  difficulties, 
when  they  occur,  indicate  an  abnormal  state  of  the  common- 
wealth or  some  of  its  members.  But  this  reign  of  law  did  not 
come  by  nature;  it  has  been  slowly  and  laboriously  won. 
Jurisdiction  began,  it  seems,  with  being  merely  voluntary, 
derived  not  from  the  authority  of  the  State  but  from  the 
consent  of  the  parties.  People  might  come  to  the  court  for  a 
decision  if  they  agreed  to  do  so.  They  were  bound  in  honour 
to  accept  the  result ;  they  might  forfeit  pledges  deposited 
with  the  court ;  but  the  court  could  not  compel  their  obedience 
any  more  than  a  tribunal  of  arbitration  appointed  at  this/ 
day  under  a  treaty  between  sovereign  States  can  compel  the 
rulers  of  those  States  to  fulfil  its  award.  Anglo-Saxon  courts  , 
had  got  beyond  this  most  early  stage,  but  not  very  farJ 
beyond  it. 

The  only  way  to  bring  an  unwilling  adversary  before  the 
court  was  to  take  something  of  his  as  security  till  he  would 
attend  to  the  demand ;  and  practically  the  only  things  that 
could  be  taken  without  personal  violence  were  cattle.  Distress 
in  this  form  was  practised  and  also  regulated  from  a  very 
early  time.  It  was  forbidden  to  distrain  until  right  had  been 
formally  demanded  —  in  Cnut's  time  to  the  extent  of  three 
summonings  —  and  refused.  Thus  leave  of  the  court  was  re- 
quired, but  the  party  had  to  act  for  himself  as  best  he  could. 
If  distress  failed  to  make  the  defendant  appear,  the  onry 
resource  left  was  to  deny  the  law's  protection  to  the  stiff- 
necked  man  who  would  not  come  to  be  judged  by  law.  He 
might  be  outlawed,  and  this  must  have  been  enough  to  coerce 


96      /•     BEFORE    THE    NORMAN    CONQUEST 

most  men  who  had  anything  to  lose  and  were  not  strong 
enough  to  live  in  rebellion ;  but  still  no  right  could  be  done 
to  the  complainant  without  his  submission.  The  device  of 
a  judgment  by  default,  which  is  familiar  enough  to  us,  was 
unknown,  and  probably  would  not  have  been  understood. 

Final  judgment,  when  obtained,  could  in  like  manner  not 
be  directly  enforced.  The  successful  party  had  to  see  to 
gathering  the  "  fruits  of  judgment,"  as  we  say,  for  himself. 
In  case  of  continued  refusal  to  do  right  according  to  the 
sentence  of  the  court,  he  might  take  the  law  into  his  own 
hands,  in  fact  wage  war  on  his  obstinate  opponent.  The 
ealdorman's  aid,  and  ultimately  the  king's,  could  be  invoked 
in  such  extreme  cases  as  that  of  a  wealthy  man,  or  one  backed 
by  a  powerful  family,  setting  the  law  at  open  defiance.  But 
this  was  an  extraordinary  measure,  analogous  to  nothing  in 
the  regular  modern  process  of  law. 

The  details  of  Anglo-Saxon  procedure  and  judicial  usuage 
had  become  or  were  fast  becoming  obsolete  in  the  thirteenth 
century,  which  is  as  much  as  to  say  that  they  were  already 
outworn  when  the  definite  growth  of  the  Common  Law  began. 
But  the  general  features  of  the  earlier  practice,  and  still 
more  the  ideas  that  underlay  them,  have  to  be  borne  in  mind. 
They  left  their  stamp  on  the  course  of  our  legal  history  in 
manifold  ways ;  many  things  in  the  medieval  law  cannot  be 
understood  without  reference  to  them;  and  even  in  modern 
law  their  traces  are  often  to  be  found. 

While  the  customary  forms  of  judgment  arid  justice  were 
such  as  we  have  said,  there  was  a  comparatively  large  amount 
of  legislation  or  at  least  express  declaration  of  law;  and, 
what  is  even  more  remarkable,  it  was  delivered  in  the  mother 
tongue  of  the  people  from  the  first.  JEthelberht,  the  con- 
verted king  of  Kent,  was  anxious  to  emulate  the  civilization 
of  Rome  in  secular  things  also,  and  reduced  the  customs  of 
his  kingdom,  so  far  as  might  be,  to  writing;  but  they  were 
called  dooms,  not  leges;  they  were  issued  in  English,  and 
were  translated  into  Latin  only  after  the  lapse  of  some  cen- 
turies. Other  Kentish  princes,  and  afterwards  Ine  of  Wes- 
sex,  followed  the  example;  but  the  regular  series  of  Anglo- 
Saxon  laws  begins  towards  the  end  of  the  ninth  century  with 


3.     POLLOCK:    ANGLO-SAXON   LAW          97 

Alfred's  publication  of  his  own  dooms,  and  (it  seems)  an 
amended  version  of  Ine's,  in  which  these  are  now  preserved. 
Through  the  century  and  a  half  between  Alfred's  time  and 
Cnut's,1  legislation  was  pretty  continuous  and  it  was  always 
in  English.  The  later  restoration  of  English  to  the  statute 
roll  after  the  medieval  reign  of  Latin  and  French  was  not 
the  new  thing  it  seemed.  It  may  be  that  the  activity  of  the 
Wessex  princes  in  legislation  was  connected  with  the  conquest 
of  the  Western  parts  of  England,  and  the  need  of  having 
fixed  rules  for  the  conduct  of  affairs  in  the  newly  settled 
districts.  No  one  doubts  that  a  considerable  West-Welsh 
population  remained  in  this  region,  and  it  would  have  been 
difficult  to  apply  any  local  West-Saxon  custom  to  them. 

Like  all  written  laws,  the  Anglo-Saxon  dooms  have  to  be 
interpreted  in  the  light  of  their  circumstances.  Unluckily 
for  modern  students,  the  matters  of  habit  and  custom  which 
they  naturally  take  for  granted  are  those  of  which  we  now 
have  least  direct  evidence.  A  large  part  of  them  is  filled 
by  minute  catalgues  of  the  fines  and  compositions  payable 
„  for  manslaughter,  wounding,  and  other  acts  of  violence.  We 
may  well  suppose  that  in  matters  of  sums  and  number  sucji 
provisions  often  express  an  authoritative  compromise  between 
the  varying  though  not  widely  dissimilar  usages  of  local 
courts;  at  all  events  we  have  an  undoubted  example  of  a 
like  process  in  the  fixing  of  standard  measures  after  the 
Conquest;  and  in  some  of  the  later  Anglo-Saxon  laws  we 
get  a  comparative  standard  of  Danish  and  English  reckon- 
ing. Otherwise  we  cannot  certainly  tell  how  much  is  declara- 
tion of  existing  custom,  or  what  we  should  now  call  consoli- 
dation, and  how  much  was  new.  We  know  from  Alfred's 
preamble  to  his  laws,  evidently  framed  with  special  care,  that 
he  did  innovate  to  some  extent,  but,  like  a  true  father  of 
English  statesmen,  was  anxious  to  innovate  cautiously.  On 
the  whole  the  Anglo-Saxon  written  laws,  though  of  priceless 
use  to  students  of  the  times,  ne'ed  a  good  deal  of  circumspec- 
tion and  careful  comparison  of  other  authorities  for  using 

JThe  so-called  laws  of  Edward  the  Confessor,  an  antiquarian  com- 
pilation of  the  twelfth  century  largely  mixed  with  invention,  do  not 
even  profess  to  be  actual  poems  of  the  Confessor,  but  the  customs  of 
his  time  collected  by  order  of  William  the  Conqueror. 


98     /•     BEFORE    THE    NORMAN    CONQUEST 

them  aright.  It  is  altogether  misleading  to  speak  of  them 
as  codes,  or  as  if  they  were  intended  to  be  a  complete  expo- 
sition of  the  customary  law. 

We  pass  on  to  the  substance  of  Anglo-Saxon  law,  so  far 
as  capable  of  being  dealt  with  in  a  summary  view.  There 
were  sharp  distinctions  between  different  conditions  of  per- 
sons, noble,  free,  and  slave.  We  may  talk  of  "  serfs  "  if 
we  like,  but  the  Anglo-Saxon  "  theow  "  was  much  more  like 
a  Roman  slave  than  a  medieval  villein.  Not  only  slaves  could 
be  -bought  and  sold,  but  there  was  so  much  regular  slave- 
trading  that  selling  men  beyond  seas  had  to  be  specially  for- 
bidden. Slaves  were  more  harshly  punished  than  free  men, 
and  must  have  been  largely  at  their  owner's  mercy,  though 
there  is  reason  to  think  that  usage  had  a  more  advanced 
standard  of  humanity  than  was  afforded  by  any  positive 
rules.  Manumission  was  not  uncommon,  and  was  specially 
favoured  by  the  Church.  The  slave  had  opportunities  (per- 
haps first  secured  under  Alfred)  for  acquiring  means  of  his 
own,  and  sometimes  bought  his  freedom. 

Among  free  men  there  were  two  kinds  of  difference.  A 
m,an  might  be  a  lord  having  dependents,  protecting  them 
and  in  turn  supported  by  them,  and  answerable  in  some 
measure  for  their  conduct;  or  he  might  be  a  free  man  of 
small  estate  dependent  on  a  lord.  In  the  tenth  century,  if 
not  before,  every  man  who  was  not  a  lord  himself  was  bound 
to  have  a  lord  on  pain  of  being  treated  as  unworthy  of  a 
free  man's  right ;  "  lordless  man "  was  to  Anglo-Saxon 
ears  much  the  same  as  "  rogue  and  vagabond "  to  ours. 
This  wide-spread  relation  of  lord  and  man  was  one  of  the 
elements  that  in  due  time  went  to  make  up  feudalism.  It 
was  not  necessarily  associated  with  any  holding  of  land  by 
the  man  from  the  lord,  but  the  association  was  doubtless 
already  common  a  long  time  before  the  Conquest,  and  there 
is  every  reason  to  think  that  the  legally  uniform  class  of 
dependent  free  men  included  many  varieties  of  wealth  and 
prosperity.  Many  were  probably  no  worse  off  than  sub- 
stantial farmers,  and  many  not  much  better  than  slaves. 

The  other  legal  difference  between  free  men  was  their 
estimation  for  wergild,  the  "  man's  price "  which  a  man's 


3.     POLLOCK:   ANGLO-SAXON   LAW          99 

kinsfolk  were  entitled  to  demand  from  his  slayer,  and  which 
sometimes  he  might  have  to  pay  for  his  own  offences ;  and 
this  was  the  more  important  because  the  weight  of  a  man's 
oath  also  varied  with  it.  A  thegn  (which  would  be  more 
closely  represented  by  "  gentilhomme "  than  by  "  noble- 
man ")  had  a  wergild  six  times  as  great  as  a  ceorVs1  or 
common  man's,  and  his  oath  counted  for  six  common  oaths 
before  the  court.2  All  free  men,  noble  or  simple,  looked  to 
their  kindred  as  their  natural  helpers  and  avengers ;  and  one 
chief  office  of  early  criminal  law  was  to  regulate  the  blood- 
feud  until  there  was  a  power  strong  enough  to  supersede  it. 

We  collect  from  the  general  tenor  of  the  Anglo-Saxon 
laws  that  the  evils  most  frequently  calling  for  remedy  were 
manslaying,  wounding,  and  cattle-stealing;  it  is  obvious 
enough  that  the  latter,  when  followed  by  pursuit  in  hot  blood, 
was  a  natural  and  prolific  source  of  the  two  former.  The 
rules  dealing  with  such  wrongs  or  crimes  (for  archaic  laws 
draw  no  firm  line  between  public  offence  and  private  injury) 
present  a  strange  contrast  of  crude  ideas  and  minute  speci- 
fication, as  it  appears  at  first  sight.  Both  are  however  really 
due  to  similar  conditions.  A  society  which  is  incapable  of 
refined  conceptions,  but  is  advanced  enough  to  require  equal 
rules  of  some  kind  and  to  limit  the  ordinary  power  of  its 
rulers,  is  likewise  incapable  of  leaving  any  play  for  judicial 
discretion.  Anglo-Saxon  courts  had  not  the  means  of  appor- 
tioning punishment  to  guilt  in  the  particular  case,  or  assess- 
ing compensation  according  to  the  actual  damage,  any  more 
than  of  deciding  on  the  merits  of  conflicting  claims  according 
to  the  evidence.  Thus  the  only  way  remaining  open  was  to  fix 
an  equivalent  in  money  or  in  kind  for  each  particular  injury: 
so  much  for  life  and  so  much  for  every  limb  and  member  of 
the  human  body.  The  same  thing  occurs  with  even  greater 
profusion  of  detail  in  the  other  Germanic  compilations  of 
the  Dark  Ages.  In  the  latter  days  of  Anglo-Saxon  mon- 

*The  modern  forms  of  these  words,  thane  and  churl,  have  passed 
through  so  much  change  of  meaning  and  application  that  they  cannot 
be  safely  used  for  historical  purposes. 

'There  were  minor  distinctions  between  ranks  of  free  men  which  are 
now  obscure,  and  were  probably  no  less  obscure  in  the  thirteenth  cen- 
tury: they  seem  to  have  been  disregarded  very  soon  after  the  Conquest. 


100    /•     BEFORE    THE    NORMAN    CONQUEST 

archy  treason  was  added  to  the  rude  catalogue  of  crimes, 
under  continental  influence  ultimately  derived  from  Roman 
law;  but  the  sin  of  plotting  against  the  sovereign  was  the 
more  readily  conceived  as  heinous  above  all  others  by  reason 
of  the  ancient  Germanic  principle  of  faith  between  a  lord  and 
his  men.  This  prominence  of  the  personal  relation  explains 
why  down  to  quite  modern  times  the  murder  of  a  husband 
by  his  wife,  of  a  master  by  his  servant,  and  of  an  ecclesiastical 
superior  by  a  clerk,  secular  or  regular,  owing  him  obedience, 
were  specially  classed  as  "  petit  treason  "  and  distinguished 
from  murder  in  general.1 

Secret  murder  as  opposed  to  open  slaying  was  treated  with 
special  severity.  This  throws  no  light  on  our  later  criminal 
law ;  nor  has  it  much  to  do  with  love  of  a  fair  fight,  though 
this  may  have  strengthened  the  feeling ;  rather  it  goes  back 
to  a  time  when  witchcraft,  and  poisoning  as  presumably  con- 
nected therewith,  were  believed  to  be  unavoidable  by  ordinary 
caution,  and  regarded  with  a  supernatural  horror  which  is 
still  easy  to  observe  among  barbarous  people.  With  these 
exceptions,  and  a  few  later  ones  of  offences  reserved  for  the 
king's  jurisdiction,  crimes  were  not  classified  or  distinguished 
in  Anglo-Saxon  custom  save  by  the  amount  of  public  fine  2 
and  private  composition  required  to  redeem  the  wrong-doer's 
life  in  each  case.  Capital  punishment  and  money  payment, 
or  rather  liability  to  the  blood-feud  redeemable  by  money 
payment,  and  slavery  for  a  thief  who  could  not  make  the 
proper  fine,  were  the  only  means  of  compulsion  generally 
applicable,  though  false  accusers  and  some  other  infamous 
persons  were  liable  to  corporal  penalties.  Imprisonment  is 
not  heard  of  as  a  substantive  punishment ;  and  it  is  needless 
to  say  that  nothing  like  a  system  of  penal  discipline  was 
known.  We  cannot  doubt  that  a  large  number  of  offences, 
even  notorious  ones,  went  unpunished.  The  more  skilled  and 
subtle  attacks  on  property,  such  as  forgery  and  allied  kinds 
of  fraud,  did  not  occur,  not  because  men  were  more  honest, 

1  Bl.  Com.  iv.  203. 

1  Wile  was  probably,  in  its  origin,  rather  a  fee  to  the  court  for  ar- 
ranging the  composition  than  a  punishment.  But  it  is  treated  as  penal 
from  the  earliest  period  of  written  laws.  In  the  tenth  century  it  could 
mean  pain  or  torment ;  see  C.  D.  1222  ad  fin. 


3.     POLLOCK:   ANGLO-SAXON   LAW        101 

but  because  fraudulent  documents  could  not  be  invented 
or  employed  in  a  society  which  knew  nothing  of  credit  and 
did  not  use  writing  for  any  common  business  of  life. 

Far  more  significant  for  the  future  development  of  Eng- 
lish law  are  the  beginnings  of  the  King's  Peace.  In  later 
times  this  became  a  synonym  for  public  order  maintained 
by  the  king's  general  authority ;  nowadays  we  do  not  easily 
conceive  how  the  peace  which  lawful  men  ought  to  keep  can 
be  any  other  than  the  Queen's  or  the  commonwealth's.  But 
the  king's  justice,  as  we  have  seen,  was  at  first  not  ordinary 
but  exceptional,  and  his  power  was  called  to  aid  only  when 
other  means  had  failed.  To  be  in  the  king's  peace  was  to 
have  a  special  protection,  a  local  or  personal  privilege. 
Every  free  man  was  entitled  to  peace  in  his  own  house,  the 
sanctity  of  the  homestead  being  one  of  the  most  ancient  and 
general  principles  of  Teutonic  law.  The  worth  set  on  a  man's 
peace,  like  that  of  his  life,  varied  with  his  rank,  and  thus 
the  king's  peace  was  higher  than  any  other  man's.  Fighting 
in  the  king's  house  was  a  capital  offence  from  an  early  time. 
Gradually  the  privileges  of  the  king's  house  were  extended 
to  the  precincts  of  his  court,  to  the  army,  to  the  regular 
meetings  of  the  shire  and  hundred,  and  to  the  great  roads. 
Also  the  king  might  grant  special  personal  protection  to  his 
officers  and  followers ;  and  these  two  kinds  of  privilege 
spread  until  they  coalesced  and  covered  the  whole  ground. 
The  more  serious  public  offences  were  appropriated  to  the 
king's  jurisdiction;  the  king's  peace  was  used  as  a  special 
sanction  for  the  settlement  of  blood- feuds,  and  was  pro- 
claimed on  various  solemn  occasions;  it  seems  to  have  been 
specially  prominent  —  may  we  say  as  a  "  frontier  regula- 
tion "  ?  —  where  English  conquest  and  settlement  were  re- 
cent.1 In  the  generation  before  the  Conquest  it  was,  to  all 
appearance,  extending  fast.  In  this  kind  of  development 
the  first  stage  is  a  really  exceptional  right ;  the  second  is  a 
right  which  has  to  be  distinctly  claimed,  but  is  open  to  all 
who  will  claim  it  in  the  proper  form ;  the  third  is  the  "  com- 
mon right  "  which  the  courts  will  take  for  granted.  The 

1  See  the  customs  of  Chester,  D.  B.  i.  262  b,  extracted  in  Stubbs,  Sel. 
Ch. 


102    /.     BEFORE    THE    NORMAN    CONQUEST 

Normans  found  the  king's  peace  nearing,  if  not  touching, 
the  second  stage. 

Except  for  a  few  peculiar  provisions,  there  is  no-thing 
in  Anglo-Saxon  customs  resembling  our  modern  distinctions 
between  wilful,  negligent,  and  purely  accidental  injuries. 
Private  vengeance  does  not  stop  to  discriminate  in  such  mat- 
ters, and  customary  law  which  started  from  making  terms 
with  the  avenger  could  not  afford  to  take  a  more  judicial 
view.  This  old  harshness  of  the  Germanic  rules  has  left  its 
traces  in  the  Common  Law  down  to  quite  recent  times.  A 
special  provision  in  Alfred's  laws  recommends  a  man  carry- 
ing a  spear  on  his  shoulder  to  keep  the  point  level  with  the 
butt  ;  if  another  runs  on  the  point  so  carried,  only  simple 
compensation  at  most  *  will  be  payable.  If  the  point  has 
been  borne  higher  (so  that  it  would  naturally  come  in  a  man's 
face),  this  carelessness  may  put  the  party  to  his  oath  to 
avoid  a  fine.  If  a  dog  worried  or  killed  any  one,  the  owner 
was  answerable  in  a  scale  of  fines  rising  after  the  first  of- 
fence ;  2  the  indulgence  of  the  modern  law  which  requires 
knowledge  of  the  dog's  habits  was  unknown.  But  it  may 
be  doubted  whether  these  rules  applied  to  anything  short 
of  serious  injury.  Alfred's  wise  men  show  their  practical 
sense  by  an  explanatory  caution  which  they  add:  the  owner 
may  not  set  up  as  an  excuse  that  the  dog  forthwith  ran  away 
and  was  lost.  This  might  otherwise  have  seemed  an  excellent 
defence  according  to  the  archaic  notion  that  the  animal  or 
instrument  which  does  damage  carries  the  liability  about 
with  it,  and  the  owner  may  free  himself  by  abandoning  it 
(noxa  caput  sequitur).  3 

We  have  spoken  of  money  payments  for  convenience  ;  but 
it  does  not  seem  likely  that  enough  money  was  available,  as 
a  rule,  to  pay  the  more  substantial  wergilds  and  fines  ;  and 
it  must  once  have  been  the  common  practice  for  the  pacified 
avenger  to  accept  cattle,  arms,  or  valuable  ornaments,  at 
a  price  agreed  between  the  parties  or  settled  by  the  court. 
The  alternative  of  delivering  cattle  is  expressly  mentioned 
in  some  of  the  earlier  laws. 


The  statement  is  rather  obscure.        *  JElt.  23. 
*See  Holmes,  the  Common  Law,  7-12. 


3.     POLLOCK:    ANGLO-SAXON    LAW        103 

As  for  the  law  of  property,  it  was  rudimentary,  and  inex- 
tricably mixed  up  with  precautions  against  theft  and  charges 
of  theft.  A  prudent  buyer  of  cattle  had  to  secure  himself 
against  the  possible  claim  of  some  former  owner  who  might 
allege  that  the  beasts  had  been  stolen.  The  only  way  to  do 
this  was  to  take  every  step  in  public  and  with  good  witness. 
If  he  set  out  on  a  journey  to  a  fair,  he  would  let  his  neigh- 
bours know  it.  When  he  did  business  either  far  or  near,  he 
would  buy  only  in  open  market  and  before  credible  persons, 
and,  if  the  sale  were  at  any  distance  from  home,  still  more 
if  he  had  done  some  trade  on  the  way  without  having  set  out 
for  the  purpose,  he  would  call  the  good  men  of  his  own  town- 
ship to  witness  when  he  came  back  driving  his  newly-gotten 
oxen,  and  not  till  then  would  he  turn  them  out  on  the  common 
pasture.  These  observances,  probably  approved  by  long- 
standing custom,  are  prescribed  in  a  whole  series  of  ordi- 
nances on  pain  of  stringent  forfeitures.1  Even  then  a  pur- 
chaser whose  title  was  challenged  had  to  produce  his  seller, 
or,  if  he  could  not  do  that,  clear  himself  by  oath.  The  seller 
might  produce  in  turn  the  man  from  whom  he  had  bought, 
and  he  again  might  do  the  like;  but  this  process  ("  vouching 
to  warranty  "  in  the  language  of  later  medieval  law)  could 
not  be  carried  more  than  three  steps  back,  to  the  "  fourth 
hand  "  including  the  buyer  himself.  All  this  has  nothing  to 
do  with  the  proof  of  the  contract  in  case  of  a  dispute  between 
the  original  parties  to  the  sale;  it  is  much  more  aimed  at 
collusion  between  them,  in  fact  at  arrangements  for  the 
receipt  and  disposal  of  stolen  goods.  The  witnesses  to  the 
sale  are  there  not  for  the  parties'  sake,  but  as  a  check  in  the 
public  interest.  We  are  tempted  at  first  sight  to  think  of 
various  modern  enactments  that  require  signature  or  other 
formalities  as  a  condition  of  particular  kinds  of  contracts 
being  enforceable;  but  their  provisions  belong  to  a  wholly 
different  category. 

Another  archaic  source  of  anxiety  is  that  borrowed  arms 

may  be  used  in  a  fatal  fight  and  bring  the  lender  into  trouble. 

The  early  notion  would  be  that  a  weapon  used  for  manslay- 

ing  should  bring  home  the  liability  with  it  to  the  owner,  quite 

1See  especially  Edg.  iv.  6-11. 


104    7.     BEFORE    THE    NORMAN    CONQUEST 

regardless  of  any  fault;  which  would  afterwards  become  a 
more  or  less  rational  presumption  that  he  lent  it  for  no  good 
purpose.  Then  the  risk  of  such  weapons  being  forfeited 
continued  even  to  modern  times.  Hence  the  armourer  who 
takes  a  sword  or  spear  to  be  repaired,  and  even  a  smith  who 
takes  charge  of  tools,  must  warrant  their  return  free  from 
blood-guiltiness,  unless  it  has  been  agreed  to  the  contrary.1 
We  also  find,  with  regard  to  the  forfeiture  of  things  which 
"  move  to  death,"  that  even  in  case  of  pure  accident,  such 
as  a  tree  falling  on  a  woodman,  the  kindred  still  have  their 
rights.  They  may  take  away  the  tree  if  they  will  come  for 
it  within  thirty  days.2 

There  wasx  not  any  law  of  contract  at  all,  as  we  now  under- 
stand it.  The  two  principal  kinds  of  transaction  requiring 
the  exchange  or  acceptance  of  promises  to  be  performed  in 
the  future  were  marriage  and  the  payment  of  wergild. 
Apart  from  the  general  sanctions  of  the  Church,  and  the 
king's  special  authority  where  his  peace  had  been  declared, 
the  only  ways  of  adding  any  definite  security  to  a  promise 
were  oath  and  giving  of  pledges.  One  or  both  of  these  were 
doubtless  regularly  used  on  solemn  occasions  like  the  settle- 
ment of  a  blood- feud;  and  we  may  guess  that  the  oath, 
which  at  all  events  carried  a  spiritual  sanction,  was  freely 
resorted  to  for  various  purposes.  But  business  had  hardly 
got  beyond  delivery  against  ready  money  between  parties 
both  present,  and  there  was  not  much  room  for  such  confi- 
dence as  that  on  which,  for  example,  the  existence  of  modern 
banking  rests.  How  far  the  popular  law  took  any  notice 
of  petty  trading  disputes,  such  as  there  were,  we  are  not 
informed ;  it  seems  likely  that  for  the  most  part  they  were 
left  to  be  settled  by  special  customs  of  traders,  and  possibly 
by  special  local  tribunals  in  towns  and  markets.  Merchants 
trafficking  beyond  seas,  in  any  case,  must  have  relied  on  the 
customs  of  their  trade  and  order  rather  than  the  cumbrous 
formal  justice  of  the  time. 

Anglo-Saxon  landholding  has  been  much  discussed,  but  is 
still  imperfectly  understood,  and  our  knowledge  of  it,  so 
far  from  throwing  any  light  on  the  later  law,  depends  largely 

.  19.  *.Elf.  13. 


3.     POLLOCK:   ANGLO-SAXON   LAW        105 

on  what  can  be  inferred  from  Anglo-Norman  sources.  It 
is  certain  that  there  were  a  considerable  number  of  inde- 
pendent free  men  holding  land  of  various  amounts  down  to 
the  time  of  the  Conquest.  In  the  eastern  counties  some  such 
holdings,  undoubtedly  free,  were  very  small  indeed.1  But 
many  of  the  lesser  free  men  were  in  practical  subjection  to 
a  lord  who  was  entitled  to  receive  dues  and  services  from 
them ;  he  got  a  share  of  their  labour  in  tilling  his  land, 
rents  in  money  and  kind,  and  so  forth.  In  short  they  were 
already  in  much  the  same  position  as  those  who  were  called 
villeins  in  the  twelfth  and  thirteenth  centuries.  Also  some 
poor  free  men  seem  to  have  hired  themselves  out  to  work  for 
others  from  an  early  time.2  We  know  next  to  nothing  of 
the  rules  under  which  free  men,  whether  of  greater  or  lesser 
substance,  held  "  folk-land,"  that  is,  estates  governed  by  the 
old  customary  law.  Probably  there  was  not  much  buying 
and  selling  of  such  land.  There  is  no  reason  to  suppose 
that  alienation  was  easier  than  in  other  archaic  societies,  and 
some  local  customs  found  surviving  long  after  the  Conquest 
point  to  the  conclusion  that  often  the  consent  of  the  village 
as  well  as  of  the  family  was  a  necessary  condition  of  a  sale. 
Indeed  it  is  not  certain  that  folk-land,  generally  speaking, 
could  be  sold  at  all.  There  is  equally  no  reason  to  think 
that  ordinary  free  landholders  could  dispose  of  their  land 
by  will,  or  were  in  the  habit  of  making  wills  for  any  purpose. 
Anglo-Saxon  wills  (or  rather  documents  more  like  a  modern 
will  than  a  modern  deed)  exist,  but  they  are  the  wills  of  great 
folk,  such  as  were  accustomed  to  witness  the  Icing's  charters, 
had  their  own  wills  witnessed  or  confirmed  by  bishops  and 
kings,  and  held  charters  of  their  own ;  and  it  is  by  no  means 
clear  that  the  lands  dealt  with  in  these  wills  were  held  as 
ordinary  folk- land.  In  some  cases  it  looks  as  if  a  special 
licence  or  consent  had  been  required;  we  also  hear  of  per- 
sistent attempts  by  the  heirs  to  dispute  even  gifts  to  great 
churches.3 

Soon  after  the  conversion  of  the  south  of  England  to 
Christianity,  English  kings  began  to  grant  the  lordship  and 

4Maitland,  Domesday  Book  and  Beyond,  106. 
3  See  C.  D.  226  compared  with  256. 


106    /.     BEFORE    THE    NORMAN    CONQUEST 

revenues  of  lands,  often  of  extensive  districts,  to  the  Church, 
or  more  accurately  speaking  to  churches,  by  written  charters 
framed  in  imitation  of  continental  models.  Land  held  under 
these  grants  by  charter  or  "  book,"  which  in  course  of  time 
acquired  set  forms  and  characters  peculiar  to  England,  was 
called  bookland,  and  the  king's  bounty  in  this  kind  was  in 
course  of  time  extended  to  his  lay  magnates.  The  same 
extraordinary  power  of  the  king,  exercised  with  the  witness 
and  advice l  of  his  witan,  which  could  confer  a  title  to 
princely  revenues,  could  also  confer  large  disposing  capacities 
unknown  to  the  customary  law;  thus  the  fortunate  holder 
of  bookland  might  be  and  often  was  entitled  not  only  to  make 
a  grant  in  his  lifetime  or  to  let  it  on  such  terms  as  he  chose, 
but  also  to  leave  it  by  will.  My  own  belief  is  that  the  land 
given  by  the  Anglo-Saxon  wills  which  are  preserved  was 
almost  always  bookland  even  when  it  is  not  so  described. 
Indeed  these  wills  are  rather  in  the  nature  of  postponed 
grants,  as  in  Scotland  a  "  trust  disposition  "  had  to  be  till 
quite  lately,  than  a  true  last  will  and  testament  as  we  now 
understand  it.  They  certainly  had  nothing  to  do  with  the 
Roman  testament.2 

Long  before  the  Conquest  it  had  become  the  ambition  of 
every  man  of  substance  to  hold  bookland,  and  we  may  well 
think  that  this  was  on  the  way  to  become  the  normal  form 
of  land-ownership.  But  this  process,  whatever  its  results 
might  have  been,  was  broken  off  by  the  advent  of  Norman 
lords  and  Norman  clerks  with  their  own  different  set  of  ideas 
and  forms. 

The  various  customs  of  inheritance  that  are  to  be  found 
even  to  this  day  in  English  copyholds,  and  to  a  limited  extent 
in  freehold  land,  and  which  are  certainly  of  great  antiquity, 
bear  sufficient  witness  that  at  least  as  much  variety  was  to 
be  found  before  the  Conquest.  Probably  the  least  usual  of 
the  typical  customs  was  primogeniture;  preference  of  the 
youngest  son,  ultimogeniture  or  junior-right  as  recent  au- 
thors have  called  it,  the  "  borough-English  "  of  our  post- 

*A  strictly  accurate  statement  in  few  words  is  hardly  possible.  See 
the  section  "Book-land  and  Folk-land"  in  Maitland,  Domesday  Book 
and  Beyond,  p.  244  sqq. 

1  See  P.  &  M.,  Hist  Eng.  L.,  bk.  II.  c.  vi.  §  3. 


3.     POLLOCK:    ANGLO-SAXON    LAW        107 

Norman  books,  was  common  in  some  parts;  preference  of 
the  youngest  daughter,  in  default  of  sons,  or  even  of  the 
youngest  among  collateral  heirs,  was  not  unknown.  But  the 
prevailing  type  was  equal  division  among  sons,  not  among 
children  including  daughters  on  an  equal  footing  as  modern 
systems  have  it.1  Here  again  the  effect  of  the  Norman  Con- 
quest was  to  arrest  or  divert  the  native  lines  of  growth.  In 
this  country  we  now  live  under  laws  of  succession  derived  in 
part  from  the  military  needs  of  Western  Europe  in  the  early 
Middle  Ages,  and  in  part  from  the  cosmopolitan  legislation 
of  Justinian,  the  line  between  the  application  of  the  two 
systems  being  drawn  in  a  manner  which  is  accounted  for  by 
the  peculiar  history  of  our  institutions  and  the  relations 
between  different  jurisdictions  in  England,  but  cannot  be 
explained  on  any  rational  principle.  But  the  unlimited  free- 
dom of  disposal  by  will  which  we  enjoy  under  our  modern 
law  has  reduced  the  anomalies  of  our  intestate  succession  to 
a  matter  of  only  occasional  inconvenience. 

Small  indeed,  it  is  easy  to  perceive,  is  the  portion  of  Anglo- 
Saxon  customs  which  can  be  said  to  have  survived  in  a  re- 
cognizable form.  This  fact  nevertheless  remains  compatible 
with  a  perfectly  real  and  living  continuity  of  spirit  in  our 
legal  institutions. 

1The  discussion  which  would  be  necessary  if  we  were  here  studying 
Germanic  customs  for  their  own  sake,  or  as  part  of  a  comparative  study 
of  archaic  customs  in  general,  is  deliberately  left  aside  as  irrelevant  to 
the  purpose  in  hand. 


PART    II. 

FROM    THE    NORMAN    CONQUEST    TO    THE 
EIGHTEENTH    CENTURY 

4.  The  Centralization  of  Norman  Justice  under  Henry  II. 

ALICE  STOPFORD   (MRS.  JOHN  RICHARD)   GREEN. 

5.  Edward  I,  the  English  Justinian. 

EDWARD  JENKS. 

6.  English  Law  and  the  Renaissance. 

FREDERIC  WILLIAM  MAITLAND. 

7.  Roman    Law   Influence    in    Chancery,    Church    Courts, 

Admiralty,  and  Law  Merchant. 

THOMAS  EDWARD  SCRUTTON. 

8.  The  History  of  the  Canon  Law  in  England. 

WILLIAM  STUBBS. 

9.  The  Development  of  the  Law  Merchant. 

WILLIAM  SEARLE  HOLDSWORTH. 

*    10.     A  Comparison  of  the  History  of  Legal  Development 
at  Rome  and  in  England. 

JAMES  BRYCE. 


109 


4.     THE    CENTRALIZATION    OF    NORMAN 
JUSTICE   UNDER   HENRY  II l 

BY  ALICE  STOPFOBD   (MRS.  JOHN  RICHARD)  GREEN  2 

THE  building  up  of  his  mighty  empire  was  not  the  only 
task  which  filled  the  first  years  of  Henry's  reign.  Side 
by  side  with  this  went  on  another  work  of  peaceful  internal 
administration  which  we  can  but  dimly  trace  in  the  dearth 
of  all  written  records,  but  which  was  ultimately  to  prove  of 
far  greater  significance  than  the  imperial  schemes  that  in 
the  eyes  of  his  contemporaries  took  so  much  larger  propor- 
tions and  shone  with  so  much  brighter  lustre. 

The  restoration  of  outward  order  had  not  been  difficult, 
for  the  anarchy  of  Stephen's  reign,  terrible  as  it  was,  had 
only  passed  over  the  surface  of  the  national  life  and  had 
been  vanquished  by  a  single  effort.  But  the  new  ruler  of 
England  had  to  begin  his  work  of  administration  not  only 
amid  the  temporary  difficulties  of  a  general  disorganization, 
but  amid  the  more  permanent  difficulties  of  a  time  of  tran- 
sition, when  society  was  seeking  to  order  itself  anew  in  its 
passage  from  the  mediaeval  to  the  modern  world;  and  his 
victory  over  the  most  obvious  and  aggressive  forms  of  dis- 
order was  the  least  part  of  his  task.  Through  all  the  time 
of  anarchy  powerful  forces  had  been  steadily  at  work  with 
which  the  king  had  now  to  reckon.  A  new  temper  and  new 
aspirations  had  been  kindled  by  the  troubles  of  the  last 

1  These  passages  are  extracted  from  "  Henry  II "  (Twelve  English 
Statesmen),  1888,  cc.  Ill,  IV,  V,  and  IX  (London:  Macmillan  &  Co.). 
The  authoress  writes  to  the  Committee:  "  I  remember  that  Sir  James 
Stephen  spoke  to  me  warmly  of  the  book  and  said  that  I  had  not  made 
a  single  legal  error." 

3  Other  Publications:  Town  Life  in  the  Fifteenth  Century,  1894; 
Oxford  Studies,  1901;  The  Conquest  of  England,  1883  (ed.) ;  Short 
History  of  the  English  People,  1888  (ed.) ;  Historical  Studies,  1903  (ed.). 

Ill 


112    //.     FROM    THE    1100'S    TO    THE    1800'S 

years.  The  deposition  of  Stephen,  the  elections  of  Matilda 
and  of  Henry,  had  been  so  many  formal  declarations  that 
the  king  ruled  by  virtue  of  a  bargain  made  between  him 
and  his  people,  and  that  if  he  .broke  his  contract  he  justly 
forfeited  his  authority.  The  routine  of  silent  and  submis- 
sive councils  had  been  broken  through,  and  the  earliest  signs 
of  discussion  and  deliberation  had  discovered  themselves; 
while  the  Church,  exerting  in  its  assemblies  an  authority 
which  the  late  king  had  helplessly  laid  down,  formed  a  new 
and  effective  centre  of  organized  resistance  to  tyranny  in 
the  future.  Even  the  rising  towns  had  seized  the  moment 
when  the  central  administration  was  paralysed  to  extend 
their  own  privileges,  and  to  acquire  large  powers  of  self- 
government  which  were  to  prove  the  fruitful  sources  of 
liberty  for  the  whole  people.  .  .  . 

It  was  these  new  conditions  of  the  national  life  which  con- 
stituted the  real  problem  of  government  —  a  problem  far 
more  slow  and  difficult  to  work  out  than  the  mere  suppres- 
sion of  a  turbulent  baronage.  In  the  rapid  movement 
towards  material  prosperity,  the  energies  of  the  people  were 
in  all  directions  breaking  away  from  the  channels  and  limits 
in  which  they  had  been  so  long  confined.  Rules  which  had 
been  sufficient  for  the  guidance  of  a  simple  society  began 
to  break  down  under  the  new  fulness  and  complexity  of  the 
national  life,  and  the  simple  decisions  by  which  questions  of 
property  and  public  order  had  been  solved  in  earlier  times 
were  no  longer  possible.  Moreover,  a  new  confusion  and 
uncertainty  had  been  brought  into  the  law  in  the  last  hun- 
dred years  by  the  effort  to  fuse  together  Norman  and  Eng- 
lish custom.  Norman  landlord  or  Norman  sheriff  naturally 
knew  little  of  English  law  or  custom,  and  his  tendency  was 
always  to  enforce  the  feudal  rules  which  he  practised  on  his 
Norman  estates.  In  course  of  time  it  came  about  that  all 
questions  of  land-tenure  and  of  the  relations  of  classes  were 
regulated  by  a  kind  of  double  system.  The  Englishman 
as  well  as  the  Norman  became  the  "  man  "  of  his  lord  as  in 
Norman  law,  and  was  bound  by  vthe  duties  which  this  in- 
volved. On  the  other  hand,  the  Norman  as  well  as  the  Eng- 
lishman held  his  land  subject  to  the  customary  burdens  and 


4.     GREEN:    HENRY    II  113 

rights  recognized  by  English  law.  Both  races  were  thus 
made  equal  before  the  law,  and  no  legal  distinction  was 
recognized  between  conqueror  and  conquered.  There  was, 
however,  every  element  of  confusion  and  perplexity  in  the 
theory  and  administration  of  the  law  itself,  in  the  variety 
of  systems  which  were  contending  for  the  mastery,  and  in 
the  inefficiency  of  the  courts  in  which  they  were  applied. 
English  law  had  grown  up  out  of  Teutonic  custom,  into 
which  Roman  tradition  had  been  slowly  filtering  through 
the  Dark  Ages.  Feudal  law  still  bore  traces  of  its  double 
origin  in  the  system  of  the  Teutonic  "  comitatus  "  and  of 
the  Roman  "  beneficium."  Forest  law,  which  governed  the 
vast  extent  of  the  king's  domains,  was  bound  neither  by 
Norman  forms  nor  by  English  traditions,  but  was  framed 
absolutely  at  the  king's  will.  Canon  law  had  been  developed 
out  of  customs  and  precedents  which  had  served  to  regulate 
the  first  Christian  communities,  and  which  had  been  largely 
formed  out  of  the  civil  law  of  Rome.  There  was  a  multitude 
of  local  customs  which  varied  in  every  hundred  and  in  every 
manor,  and  which  were  preserved  by  the  jealousy  that  pre- 
vailed between  one  village  and  another,  the  strong  sense  of 
local  life  and  jurisdiction,  and  the  strict  adherence  to  im- 
memorial traditions. 

These  different  codes  of  law  were  administered  in  various 
courts  of  divers  origins.  The  tenant-in-chief  of  the  king 
who  was  rich  enough  had  his  cause  carried  to  the  King's 
Court  of  barons,  where  he  was  tried  by  his  peers.  The 
poorer  vassals,  with  the  mass  of  the  people,  sought  such 
justice  as  was  to  be  had  in  the  old  English  courts,  the  Shire 
Court  held  by  the  sheriff,  and,  where  this  survived,  the  Hun- 
dred Court  summoned  by  the  bailiff.  The  lowest  orders  of 
the  peasant  class,  shut  out  from  the  royal  courts,  could  only 
plead  in  questions  of  property  in  the  manor  courts  of  their 
lords.  The  governing  bodies  of  the  richer  towns  were  win- 
ning the  right  to  exercise  absolute  jurisdiction  over  the 
burghers  within  their  own  walls.  The  Forest  courts  were 
held  by  royal  officers,  who  were  themselves  exempt  from 
all  jurisdiction  save  that  of  the  king.  And  under  one  plea 
or  another  all  men  in  the  State  were  liable  for  certain  causes 


114    //.     FROM    THE    1100'S    TO    THE    1800'S 

to  be  brought  under  the  jurisdiction  of  the  newly-estab- 
lished Church  courts.  This  system  of  conflicting  laws  was 
an  endless  source  of  perplexity.  The  country  was  moreover 
divided  into  two  nationalities,  who  imperfectly  understood 
one  another's  customary  rights;  and  it  was  further  broken 
into  various  classes  which  stood  in  different  relations  to  the 
law.  Those  who  had  sufficient  property  were  not  only  deemed 
entirely  trustworthy  themselves,  but  were  also  considered 
answerable  for  the  men  under  them ;  a  second  class  of  free- 
holders held  property  sufficient  to  serve  as  security  for  their 
good  behaviour,  but  not  sufficient  to  make  them  pledges  for 
others ;  there  was  a  third  and  lower  class  without  property, 
for  whose  good  conduct  the  law  required  the  pledge  of  some 
superior.  In  a  state  of  things  so  complicated,  so  uncertain 
and  so  shifting,  it  is  hard  to  understand  how  justice  can 
ever  have  been  secured;  nor,  indeed,. could  any  general  order 
have  been  preserved,  save  for  the  fact  that  these  early  courts 
of  law,  having  all  sprung  out  of  the  same  conditions  of 
primitive  life,  and  being  all  more  or  less  influenced  and  so 
brought  to  some  common  likeness  by  the  Roman  law,  did 
not  differ  very  materially  in  their  view  of  the  relations  be- 
tween the  subjects  of  the  State,  and  fundamentally  admin- 
istered the  same  justice.  Until  this  time  too  there  had  been 
but  little  legal  business  to  bring  before  the  courts.  There 
was  practically  no  commerce;  there  was  little  sale  of  land; 
questions  of  property  were  defined  within  very  narrow  limits ; 
a  mass  of  contracts,  bills  of  exchange,  and  all  the  compli- 
cated transactions  which  trade  brings  with  it,  were  only 
beginning  to  be  known.  As  soon,  however,  as  industry  de- 
veloped, and  the  needs  of  a  growing  society  made  themselves 
felt,  the  imperfections  of  the  old  order  became  intolerable. 
The  rude  methods  and  savage  punishments  of  the  law  grew 
more  and  more  burdensome  as  the  number  of  trials  increased ; 
and  the  popular  courts  were  found  to  be  fast  breaking  down 
under  the  weight  of  their  own  ignorance  and  inefficiency. 

The  most  important  of  these  was  the  Shire  Court.  It 
still  retained  its  old  constitution ;  it  preserved  some  tradi- 
tion of  a  tribunal  where  the  king  was  not  the  sole  fountain 
of  justice,  and  the  memory  of  a  law  which  was  not  the 


4.     GREEN:    HENRY    11  115 

"  king's  law."  It  administered  the  old  customary  English 
codes,  and  carried  on  its  business  by  the  old  procedure. 
There  came  to  it  the  lords  of  the  manors  with  their  stewards, 
the  abbots  and  priors  of  the  county  with  their  officers,  thef 
legal  men  of  the  hundreds  who  were  qualified  by  holding 
property  or  by  social  freedom,  and  from  every  township 
the  parish  priest,  with  the  reeve  and  four  men,  the  smiths, 
farmers,  millers,  carpenters,  who  had  been  chosen  in  the  little 
community  to  represent  their  neighbours ;  and  along  with 
them  stood  the  pledges,  the  witnesses,  the  finders  of  dead 
bodies,  men  suspected  of  crime.  The  court  was,  in  fact,  a 
great  public  meeting  of  the  whole  county ;  there  was  no  rank 
or  order  which  did  not  send  some  of  its  number  to  swell  the 
confused  crowd  that  stood  round  the  sheriff.  The  criminal 
was  generally  put  on  his  trial  by  accusation  of  an  injured 
neighbour,  who,  accompanied  by  his  friends,  swore  that  he 
did  not  bring  his  charge  for  hatred,  or  for  envy,  or  for 
unlawful  lust  of  gain.  The  defendant  claimed  the  testimony 
of  his  lord,  and  further  proved  his  innocence  by  a  simple 
or  threefold  compurgation  —  that  is,  by  the  oath  of  a  cer- 
tain number  of  freemen  among  his  neighbours,  whose  prop- 
erty gave  them  the  required  value  in  the  eye  of  the  law,  and 
who  swore  together  as  "  compurgators  "  that  they  believed 
his  oath  of  denial  to  be  "  clean  and  unperjured."  The  faith 
of  the  compurgator  was  measured  by  his  landed  property, 
and  the  value  of  the  joint-oath  which  was  required  depended 
on  a  most  intricate  and  baffling  set  of  arithmetical  calcula- 
tions, and  differed  according  to  the  kind  of  crime,  the  rank 
of  the  criminal,  and  the  amount  of  property  which  was  in 
dispute,  besides  other  differences  dependent  on  local  customs. 
Witnesses  might  also  be  called  from  among  neighbours  who 
held  property  and  were  acquainted  with  the  facts  to  which 
they  would  "  dare  "  to  swear.  The  final  judgment  was  given 
by  acclamation  of  the  "  suitors  "  of  the  court  —  that  is,  by 
the  owners  of  property  and  the  elected  men  of  the  hundreds 
or  townships ;  in  other  words,  by  the  public  opinion  of  the 
neighbourhood.  If  the  accused  man  were  of  bad  character 
by  common  report,  or  if  he  could  find  no  friends  to  swear 
in  his  behalf,  "  the  oath  burst,"  and  there  remained  for  him 


116    //.     FROM    THE    1100' 'S    TO    THE    1800'S 

only  the  ordeal  or  trial  by  battle,  which  he  might  accept  or 
refuse  at  his  own  peril.  In  the  simple  ordeal  he  dipped  his 
hand  in  boiling  water  to  the  wrist,  or  carried  a  bar  of  red- 
hot  iron  three  paces.  If  in  consequence  of  his  lord's  testi- 
mony being  against  him  the  triple  ordeal  was  used,  he  had 
to  plunge  his  arm  in  water  up  to  the  elbow,  or  to  carry  the 
iron  for  nine  paces.  If  he  were  condemned  to  the  ordeal  by 
water,  his  death  seems  to  have  been  certain,  since  sinking 
was  the  sign  of  innocence,  and  if  the  prisoner  floated  he  was 
put  to  death  as  guilty.  The  other  alternative,  trial  by 
battle,  which  had  been  introduced  by  the  Normans,  was 
extremely  unpopular  in  England;  it  told  hardly  against 
men  who  were  weak  or  untrained  to  arms,  or  against  the 
man  of  humble  birth,  who  was  allowed  against  his  armed 
opponent  neither  horse  nor  the  arms  of  a  knight,  but  simply 
a  leathern  jacket,  a  shield  of  leather  or  wood,  and  a  stick 
without  knots  or  points. 

At  the  beginning  of  the  reign  of  Henry  II.  the  Shire 
courts  seem  to  have  been  nearly  as  bad  as  they  could  be. 
Scarcely  any  attempt  had  been  made,  perhaps  none  had  till 
now  been  greatly  needed,  to  improve  a  system  which  had 
grown  up  in  a  dim  and  ruder  past.  The  Norman  kings, 
indeed,  had  introduced  into  England  a  new  method  of  decid- 
ing doubtful  questions  of  property  by  the  "  recognition  " 
of  sworn  witness  instead  of  by  the  English  process  of  corn- 
purgation  or  ordeal.  Twelve  men,  who  must  be  freemen  and 
hold  property,  were  chosen  from  the  neighbourhood,  and  as 
y  "  jurors  "  were  sworn  to  state  truly  what  they  knew  about 
the  question  in  dispute,  and  the  matter  was  decided  accord- 
ing to  their  witness  or  "recognition."  If  those  who  were 
summoned  were  unacquainted  with  the  facts,  they  were  dis- 
missed and  others  called ;  if  they  knew  the  facts  but  differed 
in  their  statement,  others  were  added  to  their  number,  till 
twelve  at  least  were  found  whose  testimony  agreed  together. 
These  inquests  on  oath  had  been  used  by  the  Conqueror  for 
fiscal  purposes  in  the  drawing  up  of  Doomsday  Book.  From 
that  time  special  "  writs  "  from  king  or  justiciar  were  occa- 
sionally granted,  by  which  cases  were  withdrawn  from  the 
usual  modes  of  trial  in  the  local  courts,  and  were  decided 


4.     GREEN:    HENRY   II  117 

by  the  method  of  recognition,  which  undoubtedly  provided 
a  far  better  chance  of  justice  to  the  suitor,  replacing  as 
it  did  the  rude  appeal  to  the  ordeal  or  to  battle  by  the  sworn 
testimony  of  the  chosen  representatives,  the  good  men  and 
true,  of  the  neighbourhood.  But  the  custom  was  not  yet 
governed  by  any  positive  and  inviolable  rules,  and  the  action 
of  the  King's  Court  in  this  respect  was  imperfectly  devel- 
oped, uncertain,  and  irregular. 

It  is  scarcely  possible,  indeed,  to  estimate  the  difficulties 
in  the  way  of  justice  when  Henry  came  to  the  throne.  The 
wretched  freeholders  summoned  to  the  Shire  Court  from 
farm  and  cattle,  from  mill  or  anvil  or  carpenter's  bench, 
knew  well  the  terrors  of  the  journey  through  marsh  and 
fen  and  forest,  the  dangers  of  flood  and  torrent,  and  perhaps 
of  outlawed  thief  or  murderer,  the  privations  and  hardships 
of  the  way ;  and  the  heavy  fines  which  occur  in  the  king's 
rolls  for  non-attendance  show  how  anxiously  great  numbers 
of  the  suitors  avoided  joining  in  the  troublesome  and  thank- 
less business  of  the  court.  When  they  reached  the  place 
of  trial  a  strange  medley  of  business  awaited  them  as  ques- 
tions arose  of  criminal  jurisdiction,  of  feudal  tenure,  of 
English  "  sac  and  soc,"  of  Norman  franchises  and  Saxon 
liberties,  with  procedure  sometimes  of  the  one  people,  some- 
times of  the  other.  The  days  dragged  painfully  on,  as, 
without  any  help  from  trained  lawyers,  the  "  suitors  "  sought 
to  settle  perplexed  questions  between  opposing  claims  of 
national,  provincial,  ecclesiastical,  and  civic  laws,  or  made 
arduous  journeys  to  visit  the  scene  of  some  murder  or  out- 
rage, or  sought  for  evidence  on  some  difficult  problem  of 
fact.  Evidence,  indeed,  was  not  easy  to  find  when  the  ques- 
tion in  dispute  dated  perhaps  from  some  time  before  the  civil 
war  and  the  suppression  of  the  sheriff's  courts,  for  no  writ- 
ten record  was  ever  kept  of  the  proceedings  in  court,  and 
everything  depended  on  the  memory  of  witnesses.  The  dif- 
ficulties of  taking  evidence  by  compurgation  increased  daily. 
A  method  which  centuries  before  had  been  successfully  ap- 
plied to  the  local  crimes  of  small  and  stationary  communities 
bound  together  by  the  closest  ties  of  kinship  and  of  fellow- 
ship in  possession  of  the  soil,  when  every  transaction  was 


118    //.     FROM    THE    1100'S   TO    THE    1800'S 

inevitably  known  to  the  whole  village  or  township,  became 
useless  when  new  social  and  industrial  conditions  had  des- 
troyed the  older  and  simpler  modes  of  life.  The  procedure 
of  the  courts  was  antiquated  and  no  longer  guided  by  con- 
sistent principles.  Their  modes  of  trial  were  so  cumbrous, 
formal,  and  inflexible  that  it  was  scarcely  possible  to  avoid 
some  minute  technical  mistake  which  might  invalidate  the 
final  decision. 

The  business  of  the  larger  courts,  too,  was  for  the  most 
part  carried  on  in  French  under  sheriff,  or  bailiff,  or  lord 
of  the  manor.  The  Norman  nobles  did  not  know  Latin, 
they  were  but  gradually  learning  English ;  the  bulk  of  the 
lesser  clergy  perhaps  spoke  Latin,  but  did  not  know  Nor- 
man ;  the  poorer  people  spoke  only  English ;  the  clerks  who 
from  this  time  began  to  note  down  the  proceedings  of  the 
king's  judges  in  Latin  must  often  have  been^puzzled  by  dia- 
lects of  English  strange  to  him.  When  each  side  in  a  trial 
claimed  its  own  customary  law,  and  neither  side  understood 
the  speech  of  the  other,  the  president  of  the  court  had  every 
temptation  to  be  despotic  and  corrupt,  and  the  interpreter 
between  him  and  his  suitors  became  an  important  person  who 
had  much  influence  in  deciding  what  mode  of  procedure  was 
to  be  followed.  The  sheriff,  often  holding  a  hereditary  post 
and  fearing  therefore  no  check  to  his  despotism,  added  to 
the  burden  of  the  unhappy  freeholders  by  a  custom  of  sum- 
moning at  his  own  fancy  special  courts,  and  laying  heavy 
fines  on  those  who  did  not  attend  them.  Even  when  the  law 
was  fairly  administered  there  was  a  growing  number  of 
cases  in  which  the  rigid  forms  of  the  court  actually  inflicted 
injustice,  as  questions  constantly  arose  which  lay  far  out- 
side the  limits  of  the  old  customary  law  of  the  Germanic 
tribes,  or  of  the  scanty  knowledge  of  Roman  law  which  had 
penetrated  into  other  codes.  The  men  of  that  day  looked 
too  often  with  utter  hopelessness  to  the  administration  of 
justice;  there  was  no  peril  so  great  in  all  the  dangers  that 
surrounded  their  lives  as  the  peril  of  the  law ;  there  was 
no  oppression  so  cruel  as  the  oppression  wrought  by  the 
harsh  and  rigid  forms  of  the  courts.  From  such  calamities 
the  miserable  and  despairing  victims  could  look  for  no  help 


4.     GREEN:   HENRY   II  119 

save  from  the  miraculous  aid  of  the  saints ;  and  society  at 
that  time,  as  indeed  it  has  been  known  to  do  in  later  days, 
was  for  ever  appealing  from  the  iniquity  of  law  to  God,  — 
to  a  God  who  protected  murderers  if  they  murdered  Jews, 
and  defended  robbers  if  they  plundered  usurers,  who  was, 
indeed,  above  all  law,  and  was  supposed  to  distribute  a  vio- 
lent and  arbitrary  justice,  answering  to  the  vulgar  notion 
of  an  equity  unknown  on  earth. 

We  catch  a  glimpse  of  a  trial  of  the  time  in  the  story 
of  a  certain  Ailward,  whose  neighbour  had  refused  to  pay 
a  debt  which  he  owed  him.  Ailward  took  the  law  into  his 
own  hands,  and  broke  into  the  house  of  his  debtor,  who  had 
gone  to  the  tavern  and  had  left  his  door  fastened  with  the 
lock  hanging  down  outside,  and  his  children  playing  within. 
Ailward  carried  off  as  security  for  his  debt  the  lock,  a  gim- 
let, and  some  tools,  and  a  whetstone  which  hung  from  the 
roof.  As  he  sauntered  home,  however,  his  furious  neighbour 
overtook  him,  having  heard  from  the  children  what  had  been 
done.  He  snatched  the  whetstone  from  Ailward's  hand  and 
dealt  him  a  blow  on  the  head  with  it,  stabbed  him  in  the  arm 
with  a  knife,  and  then  triumphantly  carried  him  to  the  house 
which  he  had  robbed,  and  there  bound  him  as  "  an  open 
thief  "  with  the  stolen  goods  upon  him.  A  crowd  gathered 
round,  and  an  evil  fellow,  one  Fulk,  the  apparitor,  an  under- 
ling of  the  sheriff  employed  to  summon  criminals  to  the  court, 
remarked  that  as  a  thief  could  not  legally  be  mutilated 
unless  he  had  taken  to  the  value  of  a  shilling,  it  would  be 
well  to  add  a  few  articles  to  the  list  of  stolen  goods.  Per- 
haps Ailward  had  won  ill-fame  as  a  creditor,  or  even,  it 
may  be,  a  money-lender  in  the  village,  for  his  neighbours 
clearly  bore  him  little  good-will.  The  crowd  readily  con- 
sented. A  few  odds  and  ends  were  gathered  —  a  bundle 
of  skins,  gowns,  linen,  and  an  iron  tool,  —  and  were  laid  by 
Ailward's  side;  and  the  next  day,  with  the  bundle  hung 
about  his  neck,  he  was  taken  before  the  sheriff  and  the 
knights,  who  were  then  holding  a  Shire  Court.  The  matter 
was  thought. doubtful;  judgment  was  delayed,  and  Ailward 
was  made  fast  in  Bedford  jail  for  a  month,  till  the  next 
county  court.  There  the  luckless  man  sent  for  a  priest  of 


120    //.     FROM    THE    1100'S    TO    THE    1800'S 

the  neighbourliood,  and  confessing  his  sins  from  his  youth 
up,  he  was  bidden  to  hope  in  the  prayers  of  the  blessed  Vir- 
gin and  of  all  the  saints  against  the  awful  terrors  of  the 
law,  and  received  a  rod  to  scourge  himself  five  times  daily; 
while  through  the  gloom  shone  the  glimmer  of  hope  that 
having  been  baptized  on  the  vigil  of  Pentecost,  water  could 
not  drown  him  nor  fire  burn  him  if  he  were  sent  to  the  ordeal. 
At  last  the  month  went  by  and  he  was  again  carried  to  the 
Shire  Court,  now  at  Leighton  Buzzard.  In  vain  he  demanded 
single  combat  with  Fulk,  or  the  ordeal  by  fire ;  Fulk,  who  had 
been  bribed  with  an  ox,  insisted  on  the  ordeal  of  water,  so 
that  he  should  by  no  means  escape.  Another  month  passed 
in  the  jail  of  Bedford  before  he  was  given  up  to  be  exam- 
ined by  the  ordeal.  Whether  he  underwent  it  or  whether  he 
pleaded  guilty  when  the  judges  met  is  uncertain,  but  how- 
ever this  might  be,  "  he  received  the  melancholy  sentence  of 
condemnation ;  and  being  taken  to  the  place  of  punishment, 
his  eyes  were  pulled  out  and  he  was  mutilated,  and  his  mem- 
bers were  buried  in  the  earth  in  the  presence  of  a  multitude 
of  persons.".  .  . 

Such  were  in  brief  outline  some  of  the  difficulties  which 
made  order  and  justice  hard  to  win.  Society  was  helpless 
to  protect  itself:  news  spread  slowly,  the  communication  of 
thought  was  difficult,  common  action  was  impossible.  Amid 
all  the  shifting  and  half  understood  problems  of  mediaeval 
times  there  was  only  one  power  to  which  men  could  look 
to  protect  them  against  lawlessness,  and  that  was  the  power 
of  the  king.  No  external  restraints  were  set  upon  his  action ; 
his  will  was  without  contradiction.  The  mediaeval  world  with 
fervent  faith  believed  that  he  was  the  very  spring  and  source 
of  justice.  In  an  age  when  all  about  him  was  changing, 
and  when  there  was  no  organized  machinery  for  the  admin- 
istration of  law,  the  king  had  himself  to  be  judge,  lawgiver, 
soldier,  financier,  and  administrator;  the  great  highways 
and  rivers  of  the  kingdom  were  in  "  his  peace ; "  the  greater 
towns  were  in  his  demesne;  he  was  guardian  of  the  poor 
and  defender  of  the  trader ;  he  was  finance  minister  in  a 
society  where  economic  conditions  were  rapidly  changing; 
he  represented  a  developed  system  of  law  as  opposed  to  the 


4.     GREEN:    HENRY    II  121 

primitive  customs  of  feud  and  private  war;  he  was  the  only 
arbiter  of  questions  that  grew  out  of  the  new  conflict  of 
classes  and  interests ;  he  alone  could  decree  laws  at  his  abso- 
lute will  and  pleasure,  and  could  command  the  power  to 
carry  out  his  decrees ;  there  was  not  even  a  professional 
lawyer  who  was  not  in  his  court  and  bound  to  his  service. 

Henry  saw  and  used  his  opportunity.  Even  as  a  youth 
of  twenty-one  he  assumed  absolute  control  in  his  courts  with 
a  knowledge  and  capacity  which  made  him  fully  able  to  meet 
trained  lawyers,  such  as  his  chancellor,  Thomas,  or  his  jus- 
ticiar,  De  Lucy.  Cool,  businesslike,  and  prompt,  he  set  him- 
self to  meet  the  vast  mass  of  arrears,  the  questions  of  juris- 
diction and  of  disputed  property,  which  had  arisen  even 
as  far  back  as  the  time  of  Henry  I.,  and  had  gone  unsettled 
through  the  whole  reign  of  Stephen,  to  the  ruin  and  havoc 
of  the  land  in  question.  He  examined  every  charter  that 
came  before  him;  if  any  was  imperfect  he  was  ready  to 
draw  one  up  with  his  own  hand;  he  watched  every  difficult 
point  of  law,  noted  every  technical  detail,  laid  down  his  own 
position  with  brief,  decision.  In  the  uncertain  and  transi- 
tional state  of  the  law  the  king's  personal  interference  knew 
scarcely  any  limits,  and  Henry  used  his  power  freely.  But 
his  unswerving  justice  never  faltered.  Gilbert  de  Bailleul, 
in  some  claim  to  property,  ventured  to  make  light  of  the 
charter  of  Henry  I.,  by  which  it  was  held.  The  king's 
wrath  blazed  up.  "  By  the  eyes  of  God,"  he  cried,  "  if  you 
can  prove  this  charter  false,  it  would  be  worth  a  thousand 
pounds  to  me !  If,"  he  went  on,  "  the  monks  here  could 
present  sucji  a  charter  to  prove  their  possession  of  Claren- 
don, which  I  love  above  all  places,  there  is  no  pretence  by 
which  I  could  refuse  to  give  it  up  to  them !  "  .  .  . 

Henry  began  his  work  of  reorganization  by  taking  up 
the  work  which  his  grandfather  had  begun  —  that  of  replac- 
ing the  mere  arbitrary  power  of  the  sovereign  by  a  uniform 
system  of  administration,  and  bringing  into  order  the  vari- 
ous conflicting  authorities  which  had  been  handed  down  from 
ancient  times,  royal  courts  and  manor  courts,  church  courts, 
shire  courts,  hundred  courts,  forest  courts,  and  local  courts 
in  special  franchises,  with  all  their  inextricable  confusion  of 


122    //.     FROM    THE    1100'S    TO    THE    1800'S 

law  and  custom  and  procedure.  Under  Henry  I.  two  courts, 
the  Exchequer  and  the  Curia  Regis,  had  control  of  all  the 
financial  and  judicial  business  of  the  kingdom.  The  Ex- 
chequer filled  a  far  more  important  place  in  the  national  life 
than  the  Curia  Regis,  for  the  power  of  the  king  was  simply 
measured  by  the  state  of  the  treasury,  when  wars  began  to 
be  fought  by  mercenaries,  and  justice  to  be  administered  by 
paid  officials.  The  court  had  to  keep  a  careful  watch  over 
the  provincial  accounts,  over  the  moneys  received  from  the 
king's  domains,  and  the  fines  from  the  local  courts.  It  had 
to  regulate  changes  in  the  mode  of  payment  as  the  use  of 
money  gradually  replaced  the  custom  of  payments  in  kind. 
It  had  to  watch  alterations  in  the  ownership  and  cultivation 
of  land,  to  modify  the  settlement  of  Doomsday  Book  so  as 
to  meet  new  conditions,  and  to  make  new  distribution  of 
taxes.  There  was  no  class  of  questions  concerning  property 
in  the  most  remote  way  which  might  not  be  brought  before 
its  judges  for  decision.  Twice  a  year  the  officers  of  the 
royal  household,  the  Chancellor,  Treasurer,  two  Chamber- 
lains, Constable,  and  Marshal,  with  a  few  barons  chosen 
from  their  knowledge  of  the  law,  sat  with  the  Justiciar  at 
their  head,  as  "  Barons  of  the  Exchequer  "  in  the  palace  at  v 
Westminster,  round  the  table  covered  with  its  "  chequered  " 
cloth  from  which  they  took  their  name.  In  one  chamber,  the 
Exchequer  of  Account,  the  "  Barons  "  received  the  reports 
of  the  sheriffs  from  every  county,  and  fixed  the  sums  to  be 
levied.  In  a  second  chamber,  the  Exchequer  of  Receipt,  the 
sheriff  or  tax-farmer  paid  in  his  dues  ano!  took  his  receipts. 
The  accounts  were  carefully  entered  on  the  treasurer's  roll, 
which  was  called  from  its  shape  the  Great  Roll  of  the  Pipe, 
and  which  may  still  be  seen  in  our  Record  Office;  the  chan- 
cellor kept  a  duplicate  of  this,  known  as  the  Roll  of  the 
Chancery;  and  an  officer  of  the  king  registered  in  a  third 
Roll  matters  of  any  special  importance.  Before  the  death  of 
Henry  I.  the  vast  amount  and  the  complexity  of  business 
in  the  Exchequer  Court  made  it  impossible  that  it  should  any 
longer  be  carried  on  wholly  in  London.  The  "  Barons  " 
began  to  travel  as  itinerant  judges  through  the  country;  as 
the  king's  special  officers  they  held  courts  in  the  provinces, 


4.     GREEN:    HENRY    II  123 

where  difficult  local  questions  were  tried  and  decided  on  the 
spot.  So  important  did  the  work  of  finance  become  that  the 
study  of  the  Exchequer  is  in  effect  the  key  to  English 
history  at  this  time.  It  was  not  from  any  philosophic  love  of 
good  government,  but  because  the  license  of  outrage  would 
have  interrupted  the  returns  of  the  revenue  that  Henry  I. 
claimed  the  title  of  the  "  Lion  of  justice."  It  was  in  great 
measure  from  a  wish  to  sweep  the  fees  of  the  Church  courts 
into  the  royal  Hoard  that  the  second  Henry  began  the  strife 
with  Becket  in  the  Constitutions  of  Clarendon,  and  the 
increase  of  revenue  was  the  efficient  cause  of  the  great 
reforms  of  justice  which  form  the  glory  of  his  reign.  It  was 
the  fount  of  English  law  and  English  freedom. 

The  Curia  Regis  was  composed  of  the  same  great  officers 
of  the  household  as  those  who  sat  in  the  Exchequer,  and  of  a 
few  men  chosen  by  the  king  for  their  legal  learning ;  but  in 
this  court  they  were  not  known  as  "  Barons  "  but  as  "  Jus- 
tices," and  their  head  was  the  Chief  Justice.  The  Curia 
Regis  dealt  with  legal  business,  with  all  causes  in  which  the 
king's  interest  was  concerned,  with  appeals  from  the  local 
courts,  and  from  vassals  who  were  too  strong  to  submit  to 
their  arbitration,  with  pleas  from  wealthy  barons  who  had 
bought  the  privilege  of  laying  their  suit  before  the  king, 
besides  all  the  perplexed  questions  which  lay  far  beyond  the 
powers  of  the  customary  courts,  and  in  which  the  equitable 
judgment  of  the  king  himself  was  required.  In  theory  its 
powers  were  great,  but  in  practice  little  business  was  actually 
brought  to  it  in  the  time  of  Henry  I. ;  the  distance  of  the 
court  from  country  places,  and  the  expense  of  carrying  a 
suit  to  it,  would  alone  have  proved  an  effectual  hindrance  to 
its  usefulness,  even  if  the  rules  by  which  it  was  guided  had 
been  much  more  complete  and  satisfactory  than  they 
actually  were. 

The  routine  of  this  system  of  administration,  as  well  as  the 
mass  of  business  to  be  done,  effectually  interfered  with  arbi- 
trary action  on  the  king's  part,  and  the  regular  and  method- . 
ical  work  of  the  organized  courts  gave  to  the  people  a  fair 
measure  of  protection  against  the  tyranny  or  caprice  of  the 
sovereign.  But  the  royal  power  which  was  given  over  to 


124    //.     FROM    THE    1100'S    TO    THE    1800'S 

justices  and  barons  did  not  pass  out  of  the  hands  of  the  king. 
He  was  still  in  theory  the  fount  of  all  authority  and  law,  and 
could,  whenever  he  chose,  resume  the  powers  that  he  had 
granted.  His  control  was  never  relaxed ;  and  in  later  days 
we  find  that  while  judges  on  circuit  who  gave  unjust  judg- 
ment were  summoned  before  the  Curia  Regis  at  Westminster, 
the  judges  of  the  Curia  Regis  itself  were  called  for  trial 
before  the  king  himself  in  his  council. 

The  reorganization  of  these  courts  was  fast  completed 
under  Henry's  great  justiciar,  De  Lucy,  and  the  chancellor 
Thomas.  The  next  few  years  show  an  amount  of  work  done 
in  every  department  of  government  which  is  simply  astonish- 
ing. The  clerks  of  the  Exchequer  took  up  the  accounts  and 
began  once  more  regular  entries  in  the  Pipe  Roll;  plans  of 
taxation  were  devised  to  fill  the  empty  hoard,  and  to  check 
the  misery  and  tyranny  under  which  the  tax-payers  groaned. 
The  king  ordered  a  new  coinage  which  should  establish  a 
uniform  system  of  money  over  the  whole  land.  As  late  as 
the  reign  of  Henry  I.  the  dues  were  paid  in  kind,  and  the 
sheriffs  took  their  receipts  for  honey,  fowls,  eggs,  corn,  wax, 
wool,  beer,  oxen,  dogs,  or  hawks.  When,  by  Henry's  orders, 
all  payments  were  first  made  in  coin  to  the  Exchequer,  the 
immediate  convenience  was  great,  but  the  state  of  the  coinage 
made  the  change  tell  heavily  against  the  crown.  It  was 
impossible  to  adulterate  dues  in  kind;  it  was  easy  to  debase 
the  coin  when  they  were  paid  in  money,  and  that  money 
received  by  weight,  whether  it  were  coin  from  the  royal  mints, 
or  the  local  coinages  that  had  continued  from  the  time  of  the 
early  English  kingdoms,  or  debased  money  from  the  private 
mints  of  the  barons.  Roger  of  Salisbury,  in  fact,  when 
placed  at  the  head  of  the  Exchequer,  found  a  great  difference 
between  the  weight  and  the  actual  value  of  the  coin  received. 
He  fell  back  on  a  simple  expedient ;  in  many  places  there  had 
been  a  provision  as  old  at  least  as  Doomsday,  which  enacted 
that  the  money  weighed  out  for  town-geld  should  if  needful 
be  tested  by  re-melting.  The  treasurer  extended  this  to  the 
whole  system  of  the  Exchequer.  He  ordered  that  all  money 
brought  to  the  Exchequer  should  itself  be  tested,  and  the 
difference  between  its  weight  and  real  value  paid  by  the 


4-     GREEN:    HENRY    II  125 

sheriff  who  brought  it.  The  burden  thus  fell  on  the  country, 
for  the  sheriff  would  of  course  protect  himself  as  far  as  he 
could  by  exacting  the  same  tests  on  all  sums  paid  to  him. 
If  the  pound  was  worth  but  ten  shillings  in  the  market  no 
doubt  the  sheriff  only  took  it  for  ten  shillings  in  his  court. 
Practically  each  tax,  each  due,  must  have  been  at  least 
doubled,  and  the  sheriff  himself  was  at  the  mercy  of  the 
Exchequer  money ers.  There  was  but  one  way  to  remedy  the 
evil,  by  securing  the  purity  of  the  coin,  and  twice  during  his 
reign  Henry  made  this  his  special  care. 

In  the  absence  of  records  we  can  only  dimly  trace  the  work 
of  legal  reform  which  was  carried  out  by  Henry's  legal  offi- 
cers; but  it  is  plain  that  before  1164  certain  great  changes 
had  already  been  fully  established.  A  new  and  elaborate  sys- 
tem of  rules  seems  gradually  to  have  been  drawn  up  for  the 
guidance  of  the  justices  who  sat  in  the  Curia  Regis;  and  a 
new  set  of  legal  remedies  in  course  of  time  made  the  chances 
of  justice  in  this  court  greater  than  in  any  other  court  of  the 
realm.  The  Great  Assize,  an  edict  whose  date  is  uncertain, 
but  which  was  probably  issued  during  the  first  years  of  his 
reign,  developed  and  set  in  full  working  order  the  imperfect 
system  of  "  recognition  "  established  by  the  Norman  kings. 
Henceforth  the  man,  whose  right  to  his  freehold  was  dis- 
puted, need  but  apply  to  the  Curia  Regis  to  issue  an  order 
that  all  proceedings  in  the  local  courts  should  be  stopped 
until  the  "  recognition  "  of  twelve  chosen  men  had  decided 
who  was  the  rightful  owner  according  to  the  common  knowl- 
edge of  the  district,  and  the  barbarous  foreign  custom  of 
settling  the  matter  by  combat  was  done  away  with.  Under 
the  new  system  the  Curia  Regis  eventually  became  the  recog- 
nized court  of  appeal  for  the  whole  kingdom.  So  great  a 
mass  of  business  was  drawn  under  its  control  that  the  king 
and  his  regular  ministers  could  no  longer  suffice  for  the  work, 
and  new  judges  had  to  be  added  to  the  former  staff;  and  at 
last  the  positions  of  the  two  chief  courts  of  the  kingdom  were 
reversed,  and  the  King's  Court  took  the  foremost  place  in  the 
amount  and  importance  of  its  business. 

The  same  system  of  trial  by  sworn  witnesses  was  also  grad- 
ually extended  to  the  local  courts.  By  the  new-fashioned 


126    //.     FROM    THE    1100'S    TO    THE    1800'S 

royal  system  the  legal  men  of  hundreds  and  townships,  the 
knights  and  freeholders,  were  ordered  to  search  out  the 
criminals  of  their  district,  and  "  present "  them  for  trial  at 
the  Shire  Court,  —  something  after  the  fashion  of  the 
"  grand  jury  "  of  to-day,  save  that  in  early  times  the  jurors 
had  themselves  to  bear  witness,  to  declare  what  they  knew 
of  the  prisoner's  character,  to  say  if  stolen  goods  had  been 
divided  in  a  certain  barn,  to  testify  to  a  coat  by  a  patch  on 
the  shoulder.  By  a  slow  series  of  changes  which  wholly 
reversed  their  duties,  the  "  legal  men  "  of  the  juries  of  "  pre- 
sentment "  and  of  "  recognition "  were  gradually  trans- 
formed into  the  "  jury  "  of  to-day ;  and  even  now  curious 
traces  survive  in  our  courts  of  the  work  done  by  the  ancestors 
of  the  modern  jury.  In  criminal  cases  in  Scotland  the  oath 
still  administered  by  the  clerk  to  jurymen  carries  us  back  to 
an  ancient  time :  "  You  fifteen  swear  by  Almighty  God,  and 
as  you  shall  answer  to  God  at  the  great  day  of  judgment, 
you  will  truth  say  and  no  truth  conceal,  in  so  far  as  you  are 
to  pass  on  this  assize."  The  provincial  administration  was 
set  in  working  order.  New  sheriffs  took  up  again  the  admin- 
istration of  the  shires,  and  judges  from  the  King's  Court 
travelled,  as  they  had  done  in  the  time  of  Henry  I.,  through 
the  land.  .  .  . 

Henry,  however,  was  at  once  met  by  a  difficulty  unknown  to 
earlier  days.  The  system  which  the  Conqueror  had  estab- 
lished of  separate  courts  for  secular  and  ecclesiastical  busi- 
ness  had  utterly  broken  down  for  purposes  of  justice.  Until 
the  reign  of  Stephen  much  of  the  business  of  the  bishops 
was  done  in  the  courts  of  the  hundred  and  the  shire.  The 
Church  courts  also  had  at  first  been  guided  by  the  customary 
law  and  traditions  of  the  early  English  Church,  which  had 
grown  up  along  with  the  secular  laws  and  had  a  distinctly 
national  character.  So  long,  indeed,  as  the  canon  law 
remained  somewhat  vague,  and  the  Church  courts  incomplete, 
they  could  work  peaceably  side  by  side  with  the  lay  courts ; 
but  with  the  development  of  ecclesiastical  law  in  the  middle  of 
the  twelfth  century,  it  was  inevitable  that  difficulties  should 
spring  up.  The  boundaries  of  civil  and  ecclesiastical  law 
were  wholly  uncertain,  the  scientific  study  of  law  had  hardly 


4.     GREEN:   HENRY   II  127 

H 

begun,  and  there  was  much  debatable  ground  which  might  be 
won  by  the  most  arrogant  or  the  most  skilful  of  the  com- 
batants. Every  brawl  of  a  few  noisy  lads  in  the  Oxford 
streets  or  at  the  gates  of  some  cathedral  or  monastic  school-* 
was  enough  to  kindle  the  strife  as  to  the  jurisdiction 
of  Church  or  State  which  shook  mediaeval  society  to  its 
foundation. 

The  Church  courts  not  only  had  jurisdiction  over  the 
whole  clerical  order,  but  exercised  wide  powers  even  over  the 
laity.  To  them  alone  belonged  the  right  to  enforce  spiritual 
penalties,  to  deal  with  cases  of  oaths,  promises,  anything  in 
which  a  man's  faith  was  pledged;  to  decide  as  to  the 
property  of  intestates,  to  pronounce  in  every  case  of  inherit- 
ance whether  the  heir  was  legitimate,  to  declare  the  law  as  to 
wills  and  marriage.  Administering  as  they  did  an  enlight- 
ened system  of  law,  they  profited  by  the  new  prosperity  of 
the  country,  and  the  judicial  and  pecuniary  disputes  which 
came  to  them  had  never  been  so  abundant  as  now.  Henry  was 
'keenly  alive  to  the  fact  that  the  archdeacons'  courts  now 
levied  every  year  by  their  fines  more  money  than  the  whole 
revenue  of  the  crown.  Young  archdeacons  were  sent  abroad 
to  be  taught  the  Roman  law,  and  returned  to  preside  over  the 
newly-established  archdeacons'  courts ;  clergy  who  sought 
high  office  were  bound  to  study  before  all  things,  even  before 
theology,  the  civil  and  canon  law.  The  new  rules,  however, 
were  as  yet  incomplete  and  imperfectly  understood  in  Eng- 
land ;  the  Church  courts  were  without  the  power  to  put  them 
in  force ;  the  procedure  was  hurried  and  irregular ;  the 
judges  were  often  ill-trained,  and  unfit  to  deal  with  the  mass 
of  legal  business  which  was  suddenly  thrown  on  them;  the 
ecclesiastical  authorities  themselves  shrank  from  defiling  the 
priesthood  by  contact  with  all  this  legal  and  secular  business, 
and  kept  the  archdeacons  in  deacons'  orders ;  the  more 
religious  clergy  questioned  whether  for  an  archdeacon  salva- 
tion were  possible.  In  the  eight  years  of  Henry's  rule  one 
hundred  murders  had  been  committed  by  clerks  who  had 
escaped  all  punishment  save  the  light  sentences  of  fine  and 
imprisonment  inflicted  by  their  own  courts,  and  Henry 
bitterly  complained  that  a  reader  or  an  acolyte  might  slay 


128     //•     FROM    THE    1100'S    TO    THE    1800'S 

a  man,  however  illustrious,  and  suffer  nothing  save  the  loss 
of  his  orders. 

Since  the  beginning  of  Henry's  reign,  too,  there  had  been 
»an  enormous  increase  of  appeals  to  Rome.  Questions  quite 
apart  from  faith  or  morals,  and  that  mostly  concerned 
property,  were  referred  for  decision  to  a  foreign  court.  The 
great  monasteries  were  exempted  from  episcopal  control  and 
placed  directly  under  the  Pope;  they  adopted  the  customs 
and  laws  which  found  favour  at  Rome;  they  upheld  the 
system  of  appeals,  in  which  their  wealth  and  influence  gave 
them  formidable  advantages.  The  English  Church  was  no 
longer  as  in  earlier  times  distinct  from  the  rest  of  Christen- 
dom, but  was  brought  directly  under  Roman  influence.  The 
clergy  were  more  and  more  separated  from  their  lay  fellow 
citizens ;  their  rights  and  duties  were  determined  on  different 
principles ;  they  were  governed  by  their  own  officers  and 
judged  by  their  own  laws,  and  tried  in  their  own  courts ;  they 
looked  for  their  supreme  tribunal  of  appeal  not  to  the  King's 
Court,  but  to  Rome ;  they  became,  in  fact,  practically  freed 
from  the  common  law. 

No  king,  and  Henry  least  of  all,  could  watch  unmoved 
the  first  great  body  which  threatened  to  stand  wholly  out- 
side the  law  of  the  land;  and  the  ecclesiastical  pretensions 
of  the  time  were  perhaps  well  matched  by  the  pretensions  of 
the  State.1  .  .  . 

In  February  1166  he  drew  up  his  long-delayed  scheme. 
His  plans  were  rapidly  completed;  by  the  16th  of  March 
the  new  system  was  at  work. 

Such  were  the  conditions  under  which  appeared  the  famous 
Assize  of  Clarendon.  For  the  first  time  in  English  history 
•  a  code  of  Uwa  was  I'ssii^H  by  the  sole  authority  of  _the_]ung»  * 
without  any  appeal  to  the  sanction  of  binding  and  immutabfe 
"  custom."  Indeed,  in  all  Europe  there  was  no  instance  of 
national  legislation  which  could  be  compared  with  it,  for  it 
was  not  till  a  hundred  years  later  that  the  first  code  of  laws 
since  the  time  of  the  Carolingian  Capitularies  was  drawn  up 
in  France.  Its  very  name  bears  witness  to  the  impression  it 

1  Here  follows  the  account  of  the  conflict  with  Becket  and  of  the  lat- 
ter's  death.  —  EDS. 


4.     GREEN:   HENRY    II  129 

made  in  its  own  day.  The  word  "  law  "  was  still  reserved 
for  certain  solemn  uses,  for  the  unalterable  code  of  Scripture 
or  for  the  Roman  law.  Men  questioned  what  to  call  this  new 
decree,  given  at  the  king's  will,  and  to  be  enforced  just  so 
long  as  he  should  choose,  and  their  jealous  conservatism  took 
refuge  in  the  word  "  assize,"  as  later  generations  in  the  same 
difficulty  fell  back  on  such  words  as  "  provision,"  "  statute," 
"  ordinance." 

The  Constitutions  of  Clarendon  two  years  before  had  lain 
down  the  principles  which  were  to  regulate  the  relations  in 
England  of  Church  and  State.  The  Assize  of  Clarendon  laid 
down  the  principles  on  which  the  administration  of  justice 
was  to  be  carried  out.  Just  as  tienry  had  undertaken  to 
bring  Church  courts  and  Church  law  under  the  king's  con- 
trol, so  now  he  aimed  at  bringing  all  local  and  rival  jurisdic- 
tions whatever  into  the  same  obedience.  In  form  the  new  law 
was  simple  enough.  It  consisted  of  twenty-two  articles  which 
were  drawn  up  for  the  use  of  the  judges  who  were  about  to 
make  their  circuits  of  the  provinces.  The  first  articles 
described  the  manner  in  which  criminals  were  to  be  "  pre- 
sented "  before  the  justices  or  sheriff.  The  accusation  was  to 
be  made  by  "  juries,"  composed  of  twelve  men  of  the  hundred 
and  four  men  of  the  township ;  the  "  presentment  "  of  a 
criminal  by  a  jury  such  as  this  practically  implied  that  the 
man  was  held  guilty  by  the  public  report  of  his  own  neigh- 
bourhood, and  he  was  therefore  forbidden  such  chance  of 
escape  as  compurgation  or  the  less  dangerous  forms  of  ordeal 
might  have  afforded,  and  was  sent  to  the  almost  certain  con- 
demnation of  the  ordeal  by  water ;  if  by  some  rare  fortune 
he  should  escape  from  this  alive  he  was  banished  from  the 
kingdom  as  a  man  of  evil  reputation.  All  freemen  were 
ordered  to  attend  the  courts  held  by  the  justices.  The  judges 
were  given  power  to  enter  on  all  estates  of  the  nobles,  to  see 
that  the  men  of  the  manor  were  duly  enrolled  under  the 
system  of  "  frank-pledge,"  in  groups  of  ten  men  bound  to 
answer  for  one  another  as  "  pledges  "  for  all  purposes  of 
police.  Strict  rules  were  made  to  prevent  the  possible  escape 
of  criminals.  The  sheriffs  were  ordered  to  aid  one  another 
in  carrying  the  hue  and  cry  after  them  from  one  country  to 


130    //.     FROM    THE    1100'S    TO    THE    1800'S 

another ;  no  "  liberty  "  or  "  honour  "  might  harbour  a  male- 
factor against  the  king's  officers ;  sheriffs  were  to  give  to  the 
justices  in  writing  the  names  of  all  fugitives,  so  that  they 
might  be  sought  through  all  England;  everywhere  jails,  in 
which  doubtful  strangers  or  suspected  rogues  might  be  shut 
up  for  safe  keeping  in  case  the  "  hue  and  cry  "  should  be 
raised  after  them,  were  to  be  made  or  repaired  with  wood 
from  the  king's  or  the  nearest  landowner's  domains ;  no  man 
might  entertain  a  stranger  for  whom  he  would  not  be  answer- 
able before  the  justices;  the  old  English  law  was  again 
repeated  in  the  very  words  of  ancient  times,  that  none  might 

take  into  his  house  a  waif  or  wanderer  for  more  than  one 
* 

night  unless  he  or  his  horse  were  sick;    and  if  he  tarried 

longer  he  must  be  kept  until  he  were  redeemed  by  his  lord  or 
could  give  safe  pledges ;  no  religious  house  might  receive  any 
of  the  mean  people  into  their  body  without  good  testimony 
as  to  character  unless  he  were  sick  unto  death ;  and  heretics 
were  to  be  treated  as  outlaws.  These  last  indeed  were  not 
very  plentiful  in  England,  and  the  over-anxious  legislators 
seem  only  to  have  had  in  view  a  little  band  of  German 
preachers,  who  had  converted  one  woman,  and  who  had  them- 
selves at  a  late  council  at  Oxford  been  branded,  flogged,  and 
driven  out  half-naked,  so  that  there  was  by  this  time 
probably  not  one  who  had  not  perished  in  the  cold. 

Such  was  the  series  of  regulations  that  opened  the  long 
course  of  reforms  by  which  English  law  has  been  built  up. 
Two  judges  were  sent  during  the  next  spring  and  summer 
through  the  whole  of  England.  The  following  year  there  was 
a  survey  of  the  forests,  and  in  1168  another  circuit  of  the 
shires  was  made  by  the  barons  of  the  Exchequer.  Year  by 
year  with  unbroken  regularity  the  terrible  visitation  of  the 
country  by  the  justices  went  on.  The  wealth  of  the  luckless 
people  poured  into  the  king's  treasury ;  the  busy  secretaries 
recorded  in  the  Rolls  a  mass  of  profits  unknown  to  the 
accounts  of  earlier  days.  The  great  barons  who  presided 
over  the  Shire  courts  found  themselves  practically  robbed  of 
power  and  influence.  The  ordinary  courts  fell  into  insignif- 
icance beside  those  summoned  by  the  king's  judges,  thronged 
as  they  were  with  the  crowd  of  rich  and  poor,  trembling  at 


4.     GREEN:    HENRY    II  131 

the  penalty  of  a  ruinous  fine  for  non-attendance  or  full  of  a 
newly -kindled  hope  of  justice.  Important  cases  were  more 
and  more  withdrawn  from  the  sheriffs  and  given  to  the 
justices.  They  entered  the  estates  of  the  nobles,  even  the 
franchises,  liberties,  and  manors  which  had  been  freed  from 
the  old  courts  of  the  shire  or  hundred;  they  reviewed  their 
decisions  and  interfered  with  their  judgments.  It  is  true 
that  the  system  established  in  principle  was  but  gradually 
carried  into  effect,  and  the  people  long  suffered  the  tyranny 
of  lords  who  maintained  their  own  prisons.  Half  a  century 
later  we  find  sturdy  barons  setting  up  their  tumbrils  and 
gallows.  In  the  reign  of  Edward  I.  there  were  still  thirty- 
five  private  gallows  in  Berkshire  alone,  and  when  one  of  them 
was  by  chance  or  age  broken  down,  and  the  people  refused  to 
set  it  up  again,  the  baron  could  still  make  shift  with  the 
nearest  oak.  But  as  a  system  of  government,  feudalism  wasT 
doomed  from  the  day  of  Henry's  Assize,  and  only  dragged 
out  a  lingering  existence  till  the  legislation  of  Edward  I.  i 
dealt  it  a  final  blow. 

The  duties  of  police  were  at  that  time  performed  by  the*, 
whole  population,  and  the  judges'  circuits  brought  home 
sharply  to  every  man  the  part  he  was  expected  to  play  in 
the  suppression  of  crime.  Juries  were  fined  if  they  had  not 
"  presented  "  a  due  amount  of  criminals ;  townships  were 
fined  if  they  had  not  properly  pursued  malefactors ;  villages 
were  fined  if  a  hut  was  burned  down  and  the  hue  and  cry  was 
not  raised,  or  if  a  criminal  who  had  fled  for  refuge  to  their 
church  escaped  from  it.  A  robber  or  murderer  must  be  paid 
for  by  his  "  pledge,"  or  if  he  had  no  pledge,  a  fine  fell  on  his 
village  or  township;  if  a  dead  body  were  found  and  the 
slayer  not  produced,  the  hundred  must  pay  for  him,  unless  a 
legal  form,  called  "  proving  his  Englishry,"  could  be  gone 
through  —  a  condition  which  was  constantly  impossible ; 
the  township  was  fined  if  the  body  had  been  buried  before  the 
coming  of  the  coroner ;  abbot  or  knight  or  householder  was 
heavily  taxed  for  every  crime  of  serf  or  hired  servant  under 
him,  or  even  for  the  offences  of  any  starving  and  worn-out 
pilgrim  or  traveller  to  whom  he  had  given  a  three  days' 
shelter.  In  the  remotest  regions  of  the  country  barons  and 


132    //.     FROM    THE    1100'S    TO    THE    1800'S 

knights  and  freeholders  were  called  to  aid  in  carrying  out  the 
law.  The  "  jurors  "  must  be  ready  at  the  judges'  summons 
wherever  and  whenever  they  were  wanted.  They  must  be 
prepared  to  answer  fully  for  their  district ;  they  must  expect 
to  be  called  on  all  sorts  of  excuses  to  Westminster  itself, 
and  no  hardships  of  the  journey  from  the  farthest  corner  of 
the  land  might  keep  them  back.  The  "  knights  of  the  shire  " 
were  summoned  as  "  recognitors  "  to  give  their  testimony  in 
all  questions  of  property,  public  privilege,  rights  of  trade, 
local  liberties,  exemption  from  taxes ;  if  the  king  demanded 
an  "  aid  "  for  the  marriage  of  his  daughter  or  the  coming 
of  age  of  his  son,  they  assessed  the  amount  to  be  paid ;  if  he 
wanted  to  count  an  estate  among  the  Royal  Forests,  it  was 
they  who  decided  whether  the  land  was  his  by  ancient  right. 
They  were  employed  too  in  all  kinds  of  business  for  the 
Court;  they  might  be  sent  to  examine  a  criminal  who  had 
fled  to  the  refuge  of  a  church,  or  to  see  whether  a  sick  man 
had  appointed  an  attorney,  or  whether  a  litigant  who 
pleaded  illness  was  really  in  bed  without  his  breeches.  If  in 
any  case  the  verdict  of  the  Shire  Court  was  disputed,  they 
were  summoned  to  Westminster  to  repeat  the  record  of  the 
county.  No  people  probably  ever  went  through  so  severe  a 
discipline  or  received  so  efficient  a  training  in  the  practical 
work  of  carrying  out  the  law,  as  was  given  to  the  English 
people  in  the  hundred  years  that  lay  between  the  Assize  of 
Clarendon  in  1166  and  the  Parliament  summoned  by  De 
Montfort  in  1265,  where  knights  from  every  shire  elected  in 
the  county  court  were  called  to  sit  with  the  bishops  and  great 
barons  in  the  common  Parliament  of  the  realm. 

In  the  pitiless  routine  of  their  work,  however,  the  barons 
of  the  Exchequer  were  at  this  early  time  scarcely  regarded  as 
judges  administering  justice  so  much  as  tax-gatherers  for  a 
needy  treasury.  Baron  and  churchman  and  burgher  alike 
saw  every  question  turn  to  a  demand  of  money  to  swell  the 
royal  Hoard;  jurors  were  fined  for  any  trifling  flaw  in  legal 
procedure;  widows  were  fined  for  leave  to  marry,  guardians 
for  leave  to  receive  their  wards ;  if  a  peasant  were  kicked  by 
his  horse,  if  in  fishing  he  fell  from  the  side  of  his  boat,  or  if 
in  carrying  home'  his  eels  or  herrings  he  stumbled  and  was 


4.     GREEN:    HENRY    II  133 

crushed  by  the  cart-wheel,  his  wretched  children  saw  horse 
or  boat  or  cart  with  its  load  of  fish  which  in  older  days  had 
been  forfeited  as  "  deodand "  to  the  service  of  God,  now 
carried  off  to  the  king's  Hoard ;  if  a  miller  was  caught  in 
the  wheel  of  his  mill  the  sheriff  must  see  the  price  of  it  paid 
to  the  royal  treasury.  In  the  country  districts  where  coin 
was  perhaps  scarcely  ever  seen,  where  wages  were  unknown, 
and  such  little  traffic  as  went  on  was  wholly  a  matter  of 
barter,  the  peasants  must  often  have  been  put  to  the  greatest 
straits  to  find  money  for  the  fines.  Year  after  year  baron  as 
well  as  peasant  and  farmer  saw  his  waggons  and  horses,  or 
his  store  of  honey,  eggs,  loaves,  beer,  the  fish  from  his  pond 
or  the  fowls  from  his  yard,  claimed  by  the  purveyors  who 
provided  for  the  judges  and  their  followers,  and  paid  for  by 
such  measures  and  such  prices  as  seemed  good  to  the  greedy 
contractors.  The  people  at  large  groaned  under  the  heavy 
burden  of  fines  and  penalties  and  charges  for  the  mainte- 
nance of  an  unaccustomed  justice.  When  in  the  visitations 
of  1168  the  judges  had  to  collect,  besides  the  ordinary  dues, 
an  "  aid  "  for  the  marriage  of  the  king's  eldest  daughter, 
the  unhappy  tax-payers,  recognizing  in  their  misery  no 
distinctions,  attributed  all  their  sufferings  to  the  new  reform, 
and  saw  in  their  king  not  a  ruler  who  desired  righteous 
judgment,  but  one  who  only  thirsted  after  gain.  The  one 
privilege  which  seemed  worth  fighting  for  or  worth  buying 
was  the  privilege  of  assessing  their  own  fines  and  managing 
their  own  courts.  Half  a  century  later  we  see  the  prevailing 
terror  at  a  visit  of  the  judges  to  Cornwall,  when  all  the 
people  fled  for  refuge  to  the  woods,  and  could  hardly  be  com- 
pelled or  persuaded  to  come  back  again.  Yet  later  the  people 
won  a  concession  that  in  time  of  war  no  circuits  should  be 
held,  so  that  the  poor  should  not  be  utterly  ruined. 

Oppression  and  extortion  had  doubtless  been  well  known 
before,  when  the  sheriff  carried  on  the  administration  of  the 
law  side  by  side  with  the  lucrative  business  of  "  farming  the 
shires ; "  but  it  was  at  least  an  irregular  and  uncertain 
oppression.  The  sheriff  might  himself  at  any  moment  share 
the  fate  of  one  of  his  own  victims  and  a  more  merciful  man 
stand  in  his  place;  in  any  case  bribes  we're  not  unavailing, 


134     //.     FROM    THE    1100'S    TO    THE    1800'S 

and  there  was  still  an  appeal  to  the  king's  justice.  But 
against  the  new  system  there  was  no  appeal ;  it  was  orderly, 
methodical,  unrelenting;  it  was  backed  by  the  whole  force 
of  the  kingdom;  it  overlooked  nothing;  it  forgot  nothing; 
it  was  comparatively  incorruptible.  The  lesser  courts,  with 
their  old  clumsy  procedure,  were  at  a  hopeless  disadvantage 
before  the  professional  judges,  who  could  use  all  the  new 
legal  methods.  If  a  man  suffered  under  these  there  was  none 
to  plead  his  cause,  for  in  all  the  country  there  was  not  a 
single  trained  lawyer  save  those  in  the  king's  service.  How- 
ever we  who  look  back  from  the  safe  distance  of  seven 
hundred  years  may  see  with  clearei  vision  the  great  work 
which  was  done  by  Henry's  Assize,  in  its  own  day  it  was  far 
from  being  a  welcome  institution  to  our  unhappy  forefathers. 
There  was  scarcely  a  class  in  the  country  which  did  not  find 
itself  aggrieved  as  the  king  waged  war  with  the  claims  of 
"  privilege "  to  stand  above  right  and  justice  and  truth. 
But  all  resistance  of  turbulent  and  discontented  factions  was 
vain.  The  great  justiciars  at  the  head  of  the  legal  adminis- 
tration, De  Lucy  and  Glanville,  steadily  carried  out  the  new 
code,  and  a  body  of  lawyers  was  trained  under  them  which 
formed  a  class  wholly  unknown  elsewhere  in  Europe.  Instead 
of  arbitrary  and  conflicting  decisions,  varying  ,in  every 
hundred  and  every  franchise  according  to  the  fashion  of  the 
district,  the  judges  of  the  Exchequer  or  Curia  Regis  declared 
judgments  which  were  governed  by  certain  general  prin- 
ciples. The  traditions  of  the  great  administrators  of 
Henry's  Court  were  handed  down  through  the  troubled  reigns 
of  his  sons ;  and  the  whole  of  the  later  Common  law  is  prac- 
tically based  on  the  decisions  of  two  judges  whose  work  was 
finished  within  fifty  years  of  Henry's  death,  and  whose 
labours  formed  the  materials  from  which  in  1260  Bracton 
drew  up  the  greatest  work  ever  written  on  English  law. 

There  was,  in  fact,  in  all  Christendom  no  such  system  of 
government  or  of  justice  as  that  which  Henry's  reforms 
built  up.  The  king  became  the  fountain  of  law  in  a  way  till 
then  unknown.  The  later  jealousy  of  the  royal  power  which 
grew  up  with  the  advance  of  industrial  activity,  with  the 
growth  of  public  opinion  and  of  its  means  of  expressing 


4.     GREEN:    HENRY    II  135 

itself,  with  the  development  of  national  experience  and 
national  self-dependence,  had  no  place  in  Henry's  days,  and 
had  indeed  no  reason  for  existence.  The  strife  for  the  aboli- 
tion of  privileges  which  in  the  nineteenth  century  was  waged 
by  the  people  was  in  the  twelfth  century  waged  by  the 
Crown.  In  that  time,  if  in  no  other,  the  assertion  of  the 
supreme  authority  of  the  king  meant  the  assertion  of  the 
supreme  authority  of  a  common  law ;  and  there  was,  in  fact, 
no  country  in  Europe  where  the  whole  body  of  the  baronage 
and  of  the  clergy  was  so  early  and  so  completely  brought 
into  bondage  to  the  law  of  the  land.  Since  all  courts  were 
royal  courts,  since  all  law  was  royal  law,  since  no  justice  was 
known  but  his,  and  its  conduct  lay  wholly  in  the  hands  of  his 
trained  servants,  there  was  no  reason  for  the  king  to  look 
with  jealousy  on  the  authority  exercised  by  the  law  over  any 
of  his  officers  or  servants.  It  may  possibly  be  due  to  this 
fact  that  in  England  alone,  of  all  countries  in  the  world, 
the  police,  the  civil  servants,  the  soldiers,  are  tried  in  the 
same  courts  and  by  the  sa*me  code  as  any  private  citizen ;  and 
that  in  England  and  lands  settled  by  English  peoples  alone 
the  Common  law  still  remains  the  ultimate  and  only  appeal 
for  every  subject  of  the  realm. 

But  the  power  which  was  taken  from  certain  privileged 
classes  and  put  in  the  hands  of  the  king  was  in  effect  by 
Henry's  Assize  given  back  to  the  people  at  large.  Foreigner 
as  he  was,  Henry  preserved  to  Englishmen  an  inheritance 
which  had  been  handed  down  from  an  immemorial  past,  and 
which  had  elsewhere  vanished  away  or  was  slipping  fast  into 
forgetfulness.  According  to  the  Roman  system,  which  in 
the  next  century  spread  over  Europe,  all  law  and  government 
proceeded  .directly  from  the  king,  and  the  subject  had  no 
right  save  that  of  implicit  obedience;  the  system  of  repre- 
sentation and  the  idea  of  the  jury  had  no  place  in  it. 
Teutonic  tradition,  on  the  other  hand,  looked  upon  the  nation 
as  a  commonwealth,  and  placed  the  ultimate  authority  in  the 
will  of  the  whole  people ;  the  law  was  the  people's  law  —  it 
was  to  be  declared  and  carried  out  in  the  people's  courts.  Aj; 
a  very  critical  moment,  when  everything  was  shifting,  uncer- 
tain, transitional,  Henry's  legislation  established  this  tradi- 


136    //.     FROM    THE    1100'S    TO    THE    1800'S 

tion  for  England.  By  his  Assize  Englishmen  were  still  to  be 
tried  in  their  ancient  courts.  Justice  was  to  be  administered 
by  the  ancient  machinery  of  shire-moot  and  hundred-moot, 
by  the  legal  men  of  hundred  and  township,  by  the  lord  and 
his  steward.  The  shire-moot  became  the  king's  court  in  so 
far  as  its  president  was  a  king's  judge  and  its  procedure 
regulated  by  the  king's  decree ;  but  it  still  remained  the  court 
of  the  people,  to  which  the  freemen  gathered  as  their  fathers 
had  done  to  the  folk-moot,  and  where  judgment  could  only 
be  pronounced  by  the  verdict  of  the  freeholders  who  sat  in 
the  court.  The  king's  action  indeed  was  determined  by  a 
curious  medley  of  chance  circumstarces  and  rooted  preju- 
dices. The  canon  law  was  fast  spreading  over  his  foreign 
states,  and  wherever  the  canon  law  came  in  the  civil  law 
followed  in  its  train.  But  in  England  local  liberties  were 
strong,  the  feudal  system  had  never  been  completely  estab- 
lished, insular  prejudice  against  the  foreigner  and  foreign 
ways  was  alert,  the  Church  generally  still  held  to  national 
tradition,  the  king  was  at  deadly  fend  with  the  Primate,  and 
was  quite  resolved  to  have  no  customs  favoured  by  him 
brought  into  the  land;  his  own  absolute  power  made  it  no 
humiliation  to  accept  the  maxim  of  English  lawyers  that 
"  the  king  is  under  God  and  the  law."  So  it  happened  that 
while  all  the  other  civilized  nations  quietly  passed  under  the 
rule  of  the  Roman  code  England  alone  stood  outside  it.  From 
the  twelfth  century  to  the  present  day  the  groundwork  of 
our  law  has  been  English,  in  spite  of  the  ceaseless  filtering-in 
of  the  conceptions  and  rules  of  the  civil  law  of  Rome. 
"  Throughout  the  world  at  this  moment  there  is  no  body  of 
ten  thousand  Englishmen  governed  by  a  system  of  law  which 
was  not-  fashioned  by  themselves."  .  .  . 

In  the  Assize  of  Northampton,  held  in  January  1176,  the 
king  confirmed  and  perfected  the  judicial  legislation  which 
he  had  begun  ten  years  before  in  the  Assize  of  Clarendon. 
The  kingdom  was  divided  into  six  circuits.  The  judges 
appointed  to  the  circuits  were  given  a  more  full  independence 
than  they  had  before,  and  were  no  longer  joined  with  the 
sheriffs  of  the  counties  in  their  sessions;  their  powers  were 
extended  beyond  criminal  jurisdiction  to  questions  of  prop- 


4.     GREEN:    HENRY    II  137 

erty,  of  inheritance,  of  wardship,  of  forfeiture  of  crown 
lands,  of  advowsons  to  churches,  and  of  the  tenure  of  land. 
For  the  first  time  the  name  of  Justitiarii  Itinerantes  was 
given  in  the  Pipe  Roll  to  these  travelling  justices;  and  the 
anxiety  of  the  king  to  make  the  procedure  of  his  courts 
perfectly  regular,  instead  of  depending  on  oral  tradition, 
was  shown  by  the  law-books  which  his  ministers  began  at  this 
time  to  draw  up.  As  a  security  against  rebellion,  a  new  oath 
of  fealty  was  required  from  every  man,  whether  earl  or 
villein ;  fugitives  and  outlaws  were  to  be  more  sharply  sought 
after,  and  felons  punished  with  harsher  cruelty.  "  Thinking 
more  of  the  king  than  of  his  sheep,"  the  legate  admitted 
Henry's  right  to  bring  the  clergy  before  secular  courts  for 
crimes  against  forest  law,  and  in  various  questions  of  lay 
fiefs ;  and  agreed  that  murderers  of  clerks,  who  till  then  had 
been  dealt  with  by  the  ecclesiastical  courts,  should  bear  the 
same  punishment  as  murderers  of  laymen,  and  should  be 
disinherited.  Religious  churchmen  looked  on  with  helpless 
irritation  at  Henry's  first  formal  victory  over  the  principles 
of  Thomas ;  in  the  view  of  his  own  day  he  had  "  renewed  the 
Assize  of  Clarendon,  and  ordered  to  be  observed  the  execrable 
decrees  for  which  the  blessed  martyr  Thomas  had  borne  exile 
for  seven  years,  and  been  crowned  with  the  crown  of 
martyrdom." 

During  the  next  two  years  Henry  was  in  perpetual  move- 
ment through  the'  land  from  Devon  to  Lincoln,  and  between 
March  1176  and  August  1177  he  summoned  eighteen  great 
councils,  besides  many  others  of  less  consequence.  From  1178 
to  1180  he  paid  his  last  long  visit  to  England,  and  again  with 
the  old  laborious  zeal  he  began  his  round  of  journeys  through 
the  country.  "  The  king  inquired  about  the  justices  whom  he 
had  appointed,  how  they  treated  the  men  of  the  kingdom ; 
and  when  he  learned  that  the  land  and  the  subjects  were  too 
much  burthened  with  the  great  number  of  justices,  because 
there  were  eighteen,  he  elected  five  —  two  clerks  and  three 
laymen  —  all  of  his  own  household ;  and  he  ordered  that  they 
should  bear  all  appeals  of  the  kingdom  and  should  do  justice, 
and  that  they  should  not  depart  from  the  King's  Court,  but 
should  remain  there  to  hear  appeals,  so  that  if  any  question 


138     //.     FROM    THE    1100'S    TO    THE    1800'S 

should  come  to  them  they  should  present  it  to  the  audience  of 
the  king,  and  that  it  should  be  decided  by  him  and  by  the  wise 
men  of  the  kingdom."  The  Justices  of  the  Bench,  as  they  were 
called,  took  precedence  of  all  other  judges.  The  influence  of 
their  work  was  soon  felt.  From  this  time  written  records 
began  to  be  kept  of  the  legal  compromises  made  before  the 
King's  Court  to  render  possible  the  transference  of  land.  It 
seems  that  in  1181  the  practice  was  for  the  first  time  adopted 
of  entering  on  rolls  all  the  business  which  came  to  the  Kings' 
Court,  the  pleas  of  the  Crown  and  common  pleas  between 
subjects.  Unlike  in  form  to  the  great  Roll  of  the  Pipe,  in 
which  the  records  of  the  Exchequer  Court  had  long  been 
kept,  the  Plea  Rolls  consisted  of  strips  of  parchment  filed 
together  by  their  tops,  on  which,  in  an  uncertain  and  at  first 
a  blundering  fashion,  the  clerks  noted  down  their  records 
of  judicial  proceedings.  But  practice  soon  brought  about 
an  orderly  and  mechanical  method  of  work,  and  the  system 
of  procedure  in  the  Bench  rapidly  attained  a  scientific  per- 
fection. Before  long  the  name  of  the  Curia  Regis  was  ex- 
clusively applied  to  the  new  court  of  appeal. 

The  work  of  legal  reform  had  now  practically  come  to 
an  end.  Henry  indeed  still  kept  a  jealous  watch  over  his 
judges.  Once  more,  on  the  retirement  of  De  Lucy  in  1179, 
he  divided  the  kingdom  into  new  circuits,  and  chose  three 
bishops  —  Winchester,  Ely,  and  Norwich  —  "  as  chief  jus- 
ticiars,  hoping  that  if  he  had  failed  before,*  these  at  least  he 
might  find  steadfast  in  righteousness,  turning  neither  to  the 
riglit  nor  to  the  left,  not  oppressing  the  poor,  and  not  decid- 
ing the  cause  of  the  rich  for  bribes."  In  the  next  year  he  set 
Glanville  finally  at  the  head  of  the  legal  administration. 
After  that  he  himself  was  called  to  other  cares.  But  he  had 
really  finished  his  task  in  England.  The  mere  system  of 
routine  which  the  wisdom  of  Henry  I.  had  set  to  control 
the  arbitrary  power  of  the  king  had  given  place  to  a,  large 
and  noble  conception  of  government;  and  by  the  genius  of 
Henry  II.  the  law  of  the  land  was  finally  established  as  the 
supreme  guardian  of  the  old  English  liberties  and  the  new 
administrative  order. 


5.    EDWARD  I,  THE  ENGLISH  JUSTINIAN 

BY  EDWARD  JENKS  2 


few  years  which  followed  the  conquest  of  Wales  have 
_l_  given  Edward  his  title  to  immortal  fame,  a  fame  earned 
by  that  noblest  of  all  royal  virtues,  a  steadfast  devotion  to 
the  happiness  and  prosperity  of  his  subjects.  Keeping  a 
wary  eye  on  the  ominous  prospects  of  the  Scottish  succession, 
never  forgetting  the  possibility  of  a  Welsh  rising,  taking  a 
conspicuous  part  in  the  territorial  and  dynastic  problems  of 
the  Continent,  —  the  quarrels  between  France  and  Aragon  in 
particular,  —  coquetting  with  successive  Popes  on  the  subject 
of  the  proposed  Crusade,  exacting  from  Philip  of  France 
a  due  fulfilment  of  the  treaties  of  Paris  and  Amiens,  his 
main  strength  was  yet  steadily  spent  in  those  great  internal 
reforms  which  mark  the  change  from  feudal  to  industrial 
England,  from  the  old  divided  England  of  the  Barons'  War 
to  the  united  England  of  the  end  of  the  century,  from  the 
Middle  Ages  to  modern  history.  In  the  winter  of  1290,  he 
lost  his  faithful  and  beloved  wife,  Eleanor  of  Castile;  and 
the  event  seemed  to  close  the  chapter  of  his  prosperity.  From 
that  time  till  his  lonely  death  in  1307,  the  King  was  involved 
in  unhappy  quarrels  —  the  interminable  quarrel  of  the  Scot- 
tish succession,  the  quarrel  with  France,  the  quarrel  with  his 
own  nobles,  the  quarrel  with  the  Church.  In  all  these,  the 
country  never  lost  its  faith  in  the  King  ;  Edward  never  sank 
in  public  esteem  as  his  father  and  grandfather  had  sunk. 
He  never  lost  the  power  to  recall  the  affections  of  his  sub- 
jects by  a  frank  appeal  to  old  memories.  "  Except  in 

1  These  passages  are  taken  from  "Edward  Plantagenet  (Edward  I), 
The  English  Justinian;  or  The  Making  of  the  Common  Law,"  1909, 
pp.  200-227,  332-346  (London  and  New  York:  G.  P.  Putnam's  Sons). 

*  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  2. 

•  139 


140    //•     FROM    THE    1100'S    TO    THE    1800'S 

opinion,  not  disagreeing,"  might  truly  have  been  said,  at  any 
moment,  of  the  King  and  his  people.  But  that  the  firm  trust 
of  Englishmen  in  the  nobleness  of  their  ruler  remained 
unshaken  during  those  sixteen  years  of  storm  and  stress, 
of  taxation  and  war,  of  absence  and  seeming  neglect,  was 
surely  due  to  the  profound  impression  of  justice,  patience, 
honesty,  wisdom,  and  self-denying  toil,  created  by  the  two 
brilliant  years  of  internal  reform,  whose  course  we  now 
attempt  to  trace. 

First  in  point  of  date  comes  the  famous  Statute  of 
Merchants,  or  Acton  Burnell.  As  we  have  formerly  seen, 
the  expansion  of  foreign  commerce,  brought  about  by  the 
Crusades,  had  rendered  the  merchant  a  figure  of  new  impor- 
tance in  the  social  system  of  the  country.  But  he  fitted  badly 
into  the  established  order  of  things.  As  often  as  not  a 
"  foreigner,"  *  he  had  no  native  town  in  England,  he  was 
a  member  of  no  clan  or  blood-feud  group,  of  no  fief  or 
monastery.  He  was  a  lost  unit  in  a  society  which  barely 
recognised  individualism  in  its  humbler  ranks ;  which  had 
a  profound  distrust  of  strangers ;  which  looked  on  commerce 
mainly  as  an  opportunity  of  cheating,  and  commercial  profit 
as  something  nearly  akin  to  usury.  The  safety  of  the 
stranger  merchant,  at  first  secured  by  placing  him  under  the 
"  mainpast,"  or  guarantee,  of  his  host,  subsequently  strength- 
ened by  his  own  spontaneous  association  into  gilds  or  brother- 
hoods, was  finally  recognised,  as  a  matter  of  national  policy, 
by  the  express  words  of  the  Great  Charter. 

But  it  was  necessary  to  the  welfare  of  the  merchant,  not 
only  that  he  should  be  protected  from  bodily  harm,  but  that 
he  should  be  actively  assisted  in  the  enforcement  of  his  rights. 
People  were  beginning  to  discover,  that  credit  is  the  life-blood 
of  commerce;  and  credit  could  not  exist  in  a  society  which 
knew  nothing  of  commercial  honour,  as  we  understand  it, 
without  an  adequate  machinery  for  the  enforcement  of  com- 
mercial obligations.  No  man,  in  the  England  of  the  thir- 
teenth century,  would  have  thought  a  fraction  the  worse  of 

1  The  word  "  foreigner  "  has  various  shades  of  meaning  in  the  records 
of  the  time.  Often  it  merely  means  a  person  not  a  member  of  the  speak- 
er's immediate  locality.  But,  in  these  pages,  it  will  be  used  in  its  mod- 
ern sense  of  a  political  alien. 


5.     JENKS:    EDWARD    I  141 

himself  for  refusing  to  satisfy  a  commercial  claim,  however 
just,  which  could  not  be  legally  enforced  against  him.  Scan- 
dalous as  the  position  seems  now  to  us,  it  had  grown  easily 
and  naturally  out  of  the  history  of  the  law  of  debt.  The 
earliest  "  debts  "  did  not  arise  out  of  voluntary  transactions : 
they  were  bloodfines  reluctantly  offered  by  guilty  men, 
robbers  and  murderers,  to  appease  the  just  vengeance  of  the 
injured  or  their  relatives.  Quite  naturally,  these  offenders 
resisted  payment  until  the  last  possible  moment.  Nowhere 
are  a  priori  conceptions  more  inadequate  to  explain  facts, 
than  in  the  discussions  of  legal  morality.  But  a  patient 
study  of  the  history  of  legal  ideas  not  only  removes  all 
difficulties:  it  leaves  the  student  wondering  at  the  simplicity 
of  the  explanation,  so  long  sought  in  vain  by  the  exalted 
methods  of  deductive  speculation. 

Thus  it  becomes  clear,  why  the  merchant  of  the  thirteenth 
century,  especially  the  foreign  merchant,  was  helpless  in  the 
hands  of  his  debtors.  Three  difficulties  stood  in  his  way. 
First,  he  could  not,  in  all  probability,  appear  as  the  ostensible 
plaintiff  before  a  tribunal  which  did  not  recognise  him  as  one 
of  its  proper  "  suitors  "  or  constituents.  He  had  to  trust 
himself  in  the  hands  of  a  native  agent,  or  "  attorney,"  who 
might  decamp  with  his  money.  Second,  he  would  find  his 
adversary  resorting,  perhaps  with  the  secret  goodwill  of  the 
tribunal,  to  every  trick  and  delay  that  chicane  could  suggest 
—  and  no  one  who  knows  anything  of  legal  history  will 
believe  that  chicane  is  a  modern  vice  —  to  postpone  the  evil 
day  on  which  judgment  should  be  pronounced  against  him. 
Finally,  if  the  plaintiff  were  successful  in  procuring  a  judg- 
ment, he  would  find  himself  obstructed  in  enforcing  it  by  a 
defective  procedure  which,  once  more,  is  intelligible  only  by 
a  reference  to  the  history  of  the  action  of  debt.  In  the  days 
when  debts  were,  as  we  have  said,  mere  alternatives  of  corporal 
vengeance,  the  man  who  could  not  satisfy  them  "  paid  with 
his  body."  In  other  words,  if  the  avenger  of  blood  did  not 
get  his  money,  he  got  his  revenge,  either  in  the  form  of 
imprisonment  of  his  debtor,  or  even  by  exacting  the  extreme 
penalty.  This  is  the  simple  explanation  of  the  horrible 
system  of  debt-slavery,  of  which  students  of  Roman  history 


142    //.     FROM    THE    1100'S    TO    THE    1800'S 

learn  so  much  —  and  so  little.  Apparently,  before  Edward's 
day,  the  right  of  the  judgment  creditor  to  seize  the  chattels 
of  his  debtor,  through  the  hands  of  the  sheriff,  had  become 
generally  recognised.  But  the  strongest  instincts  of  feudal- 
ism were  opposed  to  the  suggestion  that  a  debtor's  land 
might  be  sold  for  payment  of  his  debts,  and  a  new  tenant 
thus  imposed  upon  his  lord.  And  feudal  instincts  were,  in 
this  respect,  as  in  so  many  others,  powerfully  supported  by 
still  older  social  instincts,  surviving  from  an  age  in  which 
land  was  not  the  property  of  the  individual,  but  of  the  clan 
or  kindred,  and  when  to  admit  that  the  sacredness  of  the  kin 
group  Ynight  be  disturbed  by  the  intrusion  of  the  creditor 
of  one  of  its  members,  would  have  been  regarded  as  little 
short  of  blasphemy. 

But  the  rapid  progress  of  industry,  and  the  rapid  decay 
of  patriarchal  and  feudal  institutions,  in  the  twelfth  and 
early  thirteenth  centuries,  had  really  rendered  this  antiquated 
rule  a  relic  of  barbarism  and  a  cloak  of  injustice.  Now  that 
the  services  of  nearly  all  tenants,  except  those  in  the  lowest 
ranks,  had  been  commuted  into  money,  now  that  the  coheirs 
of  a  deceased  landowner  could  obtain  the  assistance  of  the 
King's  courts  to  effect  a  division  of  their  inheritance,  it  was 
absurd  to  maintain  the  fiction  of  patriarchal  and  feudal 
connection.  It  was,  clearly,  the  duty  of  the  lawgiver  to 
express  in  formal  terms  that  revolution  of  social  ideas  which 
had  actually  taken  place,  and  to  carry  the  revolution  to  its 
legitimate  issue. 

This,  in  fact,  is  just  what  Edward  did  in  his  famous 
Statute  (passed  even  before  the  death  of  Llywelyn  at  Orewin 
Bridge),  at  the  manor  of  his  Chancellor,  Robert  Burnell, 
Bishop  of  Bath  and  Wells,  near  Shrewsbury,  on  the  12th 
October,  1283.  The  so-called  "  Parliament  of  Acton  Bur- 
nell "  has  no  more  claim  to  constitutional  importance  than 
the  so-called  Parliament  House,  which  professes  to  be  the 
very  building  in  which  it  sat;  for  the  body  which  best 
deserved  the  title  of  Parliament  was  then  sitting  at  Shrews- 
bury, seven  miles  away,  and  the  Statute  was  probably  drawn 
up  and  promulgated,  as  it  professes  to  be,  by  the  King  and 
his  Council,  t.  e.,  the  small  body  of  officials  who  accompanied 


5.     JENKS:   EDWARD    I  143 

him  on  his  journeys.  But  its  legal  validity  has  never  been 
questioned,  and  its  importance  is  beyond  dispute.  A  mer- 
chant who  doubts  the  honesty  of  his  would-be  debtor  may 
insist  upon  his  "  recognising  "  or  admitting  his  liability  in 
a  formal  document,  sealed  in  the  presence  of  the  mayor  of  a 
chartered  borough,  and  entered  upon  a  roll  which  remains  in 
the  official  custody,  while  a  "  bill  "  or  "  obligation,"  sealed 
by  the  debtor  and  authenticated  by  the  royal  seal,  is  handed 
over  to  the  creditor.  If  the  debtor  fails  to  pay,  at  the 
appointed  time,  he  may  not  only  be  imprisoned,  but  his 
chattels  and  "  burgage "  tenements  (i.  e.,  lands  in  the 
borough)  may  be  sold,  without  any  preliminary  proceedings, 
by  the  mayor  to  satisfy  the  debt,  or,  if  there  is  any  difficulty 
in  effecting  the  sale,  the  debtor's  chattels  and  all  his  lands 
may  be  handed  over  at  a  reasonable  valuation  to  the  creditor, 
until,  out  of  the  issues,  the  debt  is  liquidated.  Even  the 
death  of  the  debtor  will  .not  destroy  the  creditor's  remedy 
against  his  lands,  which  will  remain  liable  in  the  hands  of  his 
heir,  against  whom,  however,  there  will  be  no  personal 
remedy.1 

No  apology  is  needed  for  the  space  which  has  been  given  to 
the  Statute  of  Merchants.  Under  the  cover  of  its  technical 
/  phrases,  the  King  dealt  a  death-blow  at  the  still  surviving 
forces  of  patriarchalism  and  feudalism,  and  recognised  the 
new  principles  of  individual  responsibility  and  commercial 
probity  which  were  to  be  watchwords  of  the  political  and 
social  future.  Like  a  wise  legislator,  he  had  merely  inter- 
preted and  guided  the  overwhelming  drift  of  evolution,  and 
distinguished  between  obstruction  and  progress.  He  saw  that 
the  future  greatness  of  England  lay,  not  with  the .  feudal 
landowner,  but  with  the  despised  merchant.  His  enactment 
is  admirable  in  its  simplicity  and  effectiveness.  It  was  freely 
used,  not  only  by  merchants,  but  by  every  class  of  society, 
until  improvements  in  the  procedure  of  the  courts  had  ren- 
dered it  unnecessary.  The  still  simpler  machinery  of  "  nego- 
tiable paper  "  (Bills  of  Exchange  and  Promissory  Notes) 

1  Legal  readers  will  realise  that  I  have  combined  into  one  the  original 
Statute  of  1283  and  the  amending  ordinance  of  1285.  But  it  would  have 
been  pedantic,  in  a  general  work,  to  have  separated  the  two. 


144    //.     FROM    THE    1100'S    TO    THE    1800'S 

ultimately  superseded  the  machinery  of  Edward's  enactment ; 
but,  at  least  until  Elizabeth's  day,  capitalists  lent  their 
money  on  "  statutes,"  no  less  than  on  mortgages.  And  if 
"  statutes "  were  abused  by  a  Sir  Giles  Overreach,  we 
must  not  forget,  that  an  institution  is  to  be  judged  by  its 
uses,  not  by  its  abuses.  One  injustice  Edward's  advisers 
unquestionably  did,  in  making  the  entire  inheritance  of  a 
wealthy  landowner  responsible  for  the  debts  and  follies  of  his 
eldest  son.  But  this  was  the  inevitable  consequence  of  the 
policy  which,  before  Edward  ascended  the  throne,  had  forced 
the  feudal  custom  of  primogeniture,  in  all  its  naked  simplicity, 
upon  an  unwilling  nation. 

Nothing  but  an  excusable  dislike  of  the  dry  details  of 
legal  history  can  explain  the  failure  of  the  many  able  histo- 
rians who  have  treated  of  the  reign  of  Edward,  to  detect  the 
close  connection  between  the  Statute  of  Merchants  and  the 
yet  more  famous  Statute  of  Entails,  which  so  soon  followed 
it.  On  the  King's  return  from  his  Welsh  campaign,  he 
summoned  a  great  Parliament  to  meet  at  Westminster  at 
Easter  of  the  year  1285.  It  was  a  very  different  body  from 
the  small  Council  of  ministers  which  had  drawn  up  the  Statute 
of  Merchants.  Though  the  precise  details  of  its  composition 
are,  unhappily,  obscure,  it  is  obvious  that  the  reactionary 
feudal  element  was  strong  enough  to  deal  a  severe,  though 
temporary,  check  to  the  policy  of  the  latter  statute.1  Nor 
is  it  at  all  difficult  to  understand  the  motives  which  produced 
such  an  outbreak.  If  the  lands  of  an  improvident  baron  or 
knight  were  liable  to  be  seized  by  his  creditors,  what  was  to 
become  of  the  great  feudal  families  whose  pride  of  lineage 
was  only  equalled  by  their  recklessness  and  extravagance? 
The  feudal  landowners  were  quite  shrewd  enough  to  see,  that 
a  long  family  pedigree  is  cold  comfort  unless  accompanied 
by  a  substantial  rent-roll  —  nay,  that  it  is  practically  impos- 
sible for  the  pedigree  to  be  maintained  without  the  estate. 
And  so,  banding  all  their  forces  together,  they  refused  to  pass 

'Mr.  Pearson  in  his  admirable  England  in  the  Middle  Age»  (vol. 
ii.,  p.  337)  suggests,  that  the  Parliament  of  Easter,  1285,  consisted  only 
of  the  King's  officials.  This  is  incredihle  in  the  face  of  the  statement 
made  by  Walter  of  Hemingburgh,  that  "in  that  Parliament  the  King 
informed  the  magnates  of  his  intention  of  visiting  Gascony." 


5.     JENKS:    EDWARD    I  145 

the  long  series  of  excellent  minor  reforms  on  which  the  King 
had  set  his  heart,  unless  he  first  consented  to  the  solemn 
promulgation  of  the  legality  of  entails.  It  is  impossible  to 
look  at  the  famous  Statute  of  Westminster  the  Second  with 
a  trained  eye,  and  not  to  see  the  inconsistency  of  its  first 
chapter  (the  so-called  Statute  De  Donis)  with  all  its  subse- 
quent forty-nine  clauses.  The  latter  are  the  work  of  skilled 
officials,  guided  by  a  King  of  great  ability  and  honesty,  and 
aim  at  the  minute  reform  of  the  machinery  of  an  antiquated 
system.  The  former  is  a  bold  and  defiant  assertion  of 
conservative  prejudice,  veiled  by  the  King's  advisers  in 
specious  language,  which  barely  conceals  the  chagrin  of 
the  legislator  in  whose  name  it  is  produced.  Broadly 
speaking,  it  authorised  the  creation  of  estates  which  should 
descend  in  unbroken  succession  down  the  line  of  inherit- 
ance prescribed  in  the  original  gift,  so  long  as  that  line 
should  last.  The  successive  occupants  of  the  land  might 
pose  as  the  owners,  might  draw  the  rents,  and  even  cut  down 
the  timber.;  but  instantly  on  the  death  of  each,  his  heir  would 
take  possession  of  an  unencumbered  interest,  unfettered  by 
any  liability  for  the  debts  of  his  ancestor,  or  by  any  disposi- 
tion made  by  him  during  his  lifetime.  Even  an  attainder  for 
treason  or  felony  was  not  to  work  a  forfeiture  of  the  estate ; 
for,  immediately  upon  the  attainder,  the  culprit  became  dead 
in  law,  if  not  in  fact,  and  his  heir  succeeded,  in  defiance  both 
of  the  Crown  and  the  creditors  of  the  deceased.  As,  by  the 
rule  of  primogeniture,  the  great  bulk  of  such  inheritances 
would  go  to. the  eldest  sons,  another  obvious  result  (in  the 
days  in  which  wills  of  land  were  not  recognised)  would  be, 
to  starve  the  younger  members  of  a  landowner's  family  for 
the  benefit  of  the  eldest.  By  a  refinement  of  perversity,  the 
estate,  on  failure  of  the  issue  of  the  first  acquirer,  was  to 
revert,  not  to  his  collaterals  or  his  creditors,  but  to  the  orig- 
inal donor,  who  thus  reaped  an  unexpected  windfall  from  the 
misfortunes  of  the  purchaser's  family.  The  whole  chapter  is 
a  monument  of  colossal  family  pride  and  feudal  arrogance. 
Left  to  its  natural  results,  it  would  have  converted  the  Eng- 
lish aristocracy  into  a  close  corporation  of  stupid  and  unpro- 
gressive  grandees,  filled  with  the  pride  of  pedigree,  starving 


148    //.     FROM    THE    1100'S    TO    THE    1800' S 

on  lands  which  they  had  neither  the  intelligence  nor  the  legal 
power  to  develope,  divided  from  their  own  kindred  by  feelings 
of  injustice  and  oppression,  and  especially  at  daggers  drawn 
with  their  expectant  heirs,  whose  utmost  neglect  and  disobedi- 
ence they  would  be  powerless  to  correct  by  threats  of  dis- 
herison. To  suggest  that  Edward  was  a  willing  party  to  such 
an  act  of  folly,  is  a  monstrous  calumny  on  his  fair  fame, 
and  a  gross  outrage  on  the  probabilities. 

Happily,  the  Statute  De  Donis  was  not  destined  to  endure. 
Though,  like  much  of  Edward's  legislation,  it  has  never  been 
formally  repealed,1  it  has,  unlike  much  of  that  legislation, 
long  been  rendered  a  dead  letter  by  the  more  cruel  process 
of  contemptuous  evasion.  In  spite  of  the  solemn  provisions 
of  the  Statute,  the  principle  laid  down  by  it  was  defeated 
by  the  use  of  a  legal  fiction  so  indecently  transparent,  that 
it  proves  conclusively  the  unpopularity  of  the  rule  which  it 
so  successfully  destroyed.2  Before  the  judges,  without  whose 
connivance  such  an  evasion  would  have  been  impossible, 
allowed  themselves  to  sanction  it,  we  may  be  quite. sure  that 
they  had  satisfied  themselves  of  the  feebleness  of  the  force 
behind  the  Statute.  Unfortunately,  it  is  at  present  quite 
impossible  to  say  at  what  date  the  convenient  fiction  of  the 

1  An  impious  Parliament,  moved  thereto  by  an  impious  committee, 
laid  profane  hands  on  the  Ark  of  the  Covenant  in  the  year  1887.  But  it 
only  ventured  to  remove  the  merest  trappings,  leaving  the  substance 
untouched  —  and  meaningless. 

J  If  A,  the  owner  of  an  entailed  estate,  wished  to  sell  it  to  B,  he  got 
B  to  bring  an  action  against  him  (A),  asserting  that  the  land  belonged 
already  to  him  (B),  and  that  A  was  an  interloper.  Thereupon  A 
attempted  no  defence  on  the  merits,  but  merely  pleaded -that  the  estate 
had  been  entailed  upon  him,  or  one  of  his  ancestors,  by  C,  who  had  then 
guaranteed,  or  "  warranted,"  its  title.  This  process,  technically  known 
as  "  vouching  to  warranty,"  was  repeated  as  often  as  was  necessary  to 
maintain  a  decent  appearance  of  truth,  but  was  finally  assumed  by  an 
impecunious  person  (usually  the  crier  of  the  court)  who,  for  the  modest 
fee  of  fourpence,  was  willing  to  take  upon  himself  the  responsibility  of 
defending  the  case.  A  convenient  adjournment  allowed  the  fictitious 
claimant  (B),  to  "imparl"  (or  talk)  with  the  fictitious  defendant  (the 
crier),  and,  on  the  resumption  of  the  trial,  the  latter  failed  to  appear, 
having,  in  all  probability,  retired  to  spend  his  fourpence  at  the  nearest 
alehouse.  Thereupon,  after  solemn  proclamation,  he  was  pronounced  in 
default,  the  claim  of  B  was  established  by  the  judgement  of  the  court 
(which,  of  course,  no  one  could  dispute),  and  the  disappointed  heirs  of 
A  were  compensated,  in  theory,  by  a  decree  that  the  defaulting  crier 
should  give  them  lands  of  equal  value.  There  were  heavy  fees  all 
through  this  process,  which  may  perhaps  account  for  its  success  and 
complexity. 


5.     JENKS:    EDWARD    I  147 

"  Common  Recovery  "  made  good  its  footing  in  this  connec- 
tion. The  classical  instance  occurred  in  the  year  1472 ;  but 
it  is  obvious,  from  the  merely  incidental  way  in  which  it  is 
mentioned  by  the  reporter,  that  the  process  was  perfectly 
familiar  at  that  time ;  and,  as  our  knowledge  of  legal  history 
increases,  it  may  very  well  be  discovered,  that  the  Statute 
De  Donis  had  even  a  shorter  life  than  that  usually  attributed 
to  it.  At  any  rate,  ever  since  the  close  of  the  fifteenth 
century,  the  unbreakable  entail  has  ceased  to  exist,  save 
in  the  few  cases  of  land  settled  by  Act  of  Parliament  as 
the  reward  of  public  services,  and  —  in  the  pages  of  the 
novelist.1 

Only  a  very  brief  analysis  can  be  attempted  of  the  long  and 
elaborately  technical  clauses  which  make  up  the  rest  of  the 
great  Statute  of  Westminster  the  Second.  It  was  natural 
that  an  enactment  avowedly  based  upon  the  evils  brought  to 
light  by  the  Hundred  Rolls,  and  the  proceedings  thereon, 
should  contain  a  good  deal  about  feudal  abuses.  The  harsh 
proceedings  of  landlords  who  make  use  of  the  new  legal  pro- 
cedure to  extort  their  dues  from  their  tenants,  are  checked; 
none  but  sworn  bailiffs  are  to  be  employed  in  seizing  goods 
for  default  of  rent ;  and  in  such  cases  the  tenants  are  to  have 
full  opportunity  of  testing  the  validity  of  the  seizures  in  an 
independent  court.  The  use  of  violence  in  the  place  of  legal 
procedure  is  sternly  prohibited.  Further  encroachments  on 
the  jurisdiction  of  the  Crown  are  anticipated  by  the  provi- 
sion, that  every  judge  who  goes  circuit  is  to  be  furnished  by 
the  Exchequer  officials  with  a  list  of  "  franchises,"  lawfully 
claimable  by  subjects  within  the  counties  of  his  commission; 
and  any  tampering  with  the  returns  by  which  such  lists  are 
brought  up  to  date  is  to  be  punished  as  treason.  On  the  other 
hand,  the  Statute  shews  every  disposition  to  protect  the 
feudal  landowners  in  the  exercise  of  their  admitted  rights ; 
and,  in  one  particular  case,  we  may  well  think  that  it  assists 
them  at  the  expense  of  a  class  far  less  able  to  make  its  claims 
heard.  The  46th  clause  of  the  Statute  expressly  authorizes 

1  Honorable  exception  from  the  criticism  implied  in  this  last  sentence 
must  always  be  made  for  the  classical  case  of  George  Eliot,  who,  in  the 
pages  of  Felix  Holt,  shewed  that  she  was  quite  capable  of  grasping  the 
subtleties  of  medieval  conveyancing. 


148    //.     FROM    THE    1100'S    TO    THE    1800'S 

the  manorial  lords,  in  continuance  of  the  policy  of  the  older 
Statute  of  Merton,  to  "  approve,"  i.  e.,  bring  under  cultiva- 
tion, any  part  of  the  common  wastes  which  then  formed  such 
a  valuable  preserve  for  the  humbler  members  of  the  villages. 
The  established  rights  of  the  "  commoners  "  are,  of  course, 
theoretically  safeguarded;  but  there  is  no  provision  for  the 
growth  of  population;  and  a  lurid  light  is  thrown  on  an 
otherwise  obscure  economic  struggle,  by  the  provision,  that 
if  hedges  or  dykes,  erected  in  the  course  "of  approvement, 
are  secretly  destroyed,  the  adjoining  townships  are  to  be 
distrained,  without  proof  of  complicity,  to  make  good  the 
damage. 

But  Edward  was  not  the  man  to  reform  his  neighbour's 
household  while  he  left  his  own  in  disorder ;  and  one  of  the 
most  conspicuous  features  of  the  Statute  of  Westminster  the 
Second  is  its  elaborate  provision  against  abuses  by  royal 
officials.  Not  only  are  the  circuits  of  the  judges  carefully 
regulated,  to  prevent,  on  the  one  hand,  oppressive  multiplica- 
tion of  public  burdens  by  too  frequent  sessions,  and  on  the 
other,  delay  and  injustice  arising  from  insufficient  attend- 
ance, but  the  more  glaring  abuses  of  official  power  are  treated 
with  a  frankness  which  must  have  convinced  the  culprits  that 
the  King,  at  least,  had  his  eyes  open  to  their  misdeeds. 
Sheriffs  and  bailiffs  who  start  bogus  prosecutions,  with  the 
object  of  extorting  money,  are  to  suffer  imprisonment. 
Petty  officials  of  local  tribunals,  who  connive  with  feudal  , 
landowners  to  withdraw  suits  from  the  circuit  courts,  in 
order  that  they  may  oppress  the  poor  in  private,  are  to  make 
fine  to  the  King,  and  to  pay  threefold  damages  to  the  party 
injured.  Whilst  the  duty  of  service  on  juries  is  asserted,  the 
obvious  danger  of  persecution  and  extortion,  by  the  officials 
charged  with  the  preparation  of  the  lists,  is  carefully  guarded 
against.  A  very  significant  clause  requires  the  sheriffs  to 
give  sealed  receipts  for  all  writs  delivered  to  them  for  execu- 
tion. The  fees  of  the  hierarchy  of  royal  officials,  from  the 
Marshal  and  the  Chamberlain,  down  to  the  porters,  cyrogra- 
phers,  and  clerks,  are  carefully  regulated.  And,  finally,  a 
most  wholesome  clause  lays  it  down  emphatically,  that  no 
royal  official  may  accept  a  share  of,  or  purchase  any  interest 


5.     JENKS:   EDWARD    I  149 

in,  property  which  is  the  subject-matter  of  dispute  in  the 
royal  courts. 

The  Statute  of  Westminster  the  Second  is,  perhaps,  mainly 
concerned  with  the  conduct  of  the  King's  local  representatives 
in  the  country  districts ;  but  an  almost  contemporary  group 
of  Exchequer  Ordinances  made  strict  and  much-needed 
reforms  in  the  machinery  of  the  central  government.  The 
cherished  abuse  of  all  revenue  officials,  from  the  days  of 
Falkes  de  Breaute  to  the  days  of  Marlborough  and  Stephen 
Fox,  viz.,  the  retention  of  heavy  balances  in  their  private 
pockets,  was  sternly,  though,  it  is  to  be  feared,  ineffectually 
forbidden  by  Edward's  rules.  The  employment  of  irrespon- 
sible private  agents  in  the  King's  business  is  strictly  pro- 
hibited. Alleged  deductions  on  account  of  expenses  are  to  be 
carefully  scrutinised  by  independent  surveyors.  Oppressive 
exaction,  even  of  the  King's  debts,  is  deprecated.  And  it  is 
twice  laid  down,  but,  alas !  ineffectually,  that  the  special  royal 
privileges  of  the  Exchequer  process,  which  were  intended 
for  the  benefit  of  the  King  only,  are  not  to  be  made  use  of  by 
private  persons.1  Leaving,  for  the  moment,  the  eloquent 
comment  on  these  regulations  furnished  by  the  proceedings 
of  the  year  1290,  we  return  to  our  analysis  of  the  Statute 
of  Westminster  the  Second. 

The  third  and  last  great  object  of  this  Statute  may  be  said 
to  have  been,  to  apply  to  ordinary  litigants  the  same  rules 
of  justice  and  moderation  which,  as  we  have  seen,  the  King 
had  imposed  on  the  feudal  nobility  and  his  own  officials.  The 
farther  back  we  go  in  legal  history,  the  more  clear  does  it 
become,  that  the  abuse  of  legal  process,  by  litigants  and 
officials  alike,  is  no  new  thing,  but,  on  the  contrary,  an  ancient 
evil  which  steadily,  if  slowly,  tends  to  diminish.  Nor  is  there 
anything  in  this  discovery  that  should  surprise  us.  Legal 
procedure  grew  out  of  a  gradual  substitution  of  argument 
for  violence,  and  it  bears  the  marks  of  its  origin  at  every  turn. 

lfrhis  wholesome  rule  proved  entirely  unable  to  withstand  the  oppo- 
sition of  two  powerful  interests:  (1)  of  the  Exchequer  judges,  to  whom 
increased  business  meant  increased  fees,  and  (2)  of  wealthy  litigants, 
who  coveted  the  special  privileges  exercisable  by  a  royal  litigant,  and 
were  willing  to  pay  for  them.  It  was  evaded,  as  every  student  of  our 
legal  history  knows,  by  the  use  of  transparent  fictions. 


150   //.     FROM    THE    1100 'S    TO    THE    1800'S 

The  doing  of  "  abstract  justice  "  is,  no  doubt,  an  unwise 
ideal  for  any  human  tribunal  to  cherish.  But  long  before 
the  far  more  modest  ideal  of  "  substantial  justice  "  arises  in 
the  minds  of  judges  and  legislators,  the  most  exalted  aim 
of  courts  of  justice  is  to  secure  a  "  fair  fight,"  of  a  kind 
which  shall  not  disturb  public  order.  And  a  subtle  or  wealthy 
litigant  no  more  refrains  from  profiting  by  tricks  or  bribery, 
than  a  modern  general  refrains  from  exercising  his  skill  or 
resources  because  he  knows  that  his  adversary  is  a  fool. 
Early  reforms  in  the  administration  of  justice  are  really 
made  in  the  interests  of  sport,  rather  than  in  the  interests 
of  what  we  call  justice.  Even  nor,  the  fascination  of 
a  great  lawsuit,  for  the  mass  of  men,  lies  in  the  excite- 
ment of  the  duel  between  plaintiff  and  defendant,  or 
between  Crown  and  prisoner,  rather  than  in  any  desire  to 
see  justice  reproved  or  wickedness  punished.  In  early  society, 
the  Court  Day  is  one  of  the  few  excitements  in  a  monotonous 
existence;  and  unfair  tricks  and  outrageous  oppression  are 
gradually  prohibited,  just  as  wide  bats  and  "  no  balls  "  have 
been  prohibited  in  cricket  —  because  they  spoil  sport.  The 
details  of  the  Statute  show  that  Edward's  advisers  thoroughly 
grasped  this  truth.  They  are  far  too  technical  to  be  set  out 
here;  but,  broadly  speaking,  we  may  say,  that  they  are 
aimed  solely  at  preventing  collusion,  fraud,  -and  delay, 
offences  (as  we  should  deem  them)  which  are  inconsistent 
with  wholesome  sport.  The  first  obviously  tends  to  deceive 
the  spectators,  and  stands  on  the  same  footing  as  the  "  pull- 
ing "  of  a  horse  in  the  Derby.  The  second  is  always  unpop- 
ular in  a  society  which  prefers  the  exercise  of  physical  to 
mental  force;  and  the  third  is  obviously  disappointing  to 
people  who  have  come  a  long  way  to  see  the  performance, 
and  are  apt  to  lose  the  thread  of  the  story  if  the  intervals 
between  the  acts  are  too  long.  So  the  dowress,  the  life 
tenant,  or  other  temporary  occupant  of  land,  who  allows 
himself  to  be  defeated  in  lawsuit  by  a  collusive  claimant,  with 
a  view  to  excluding  his  successor ;  the  husband  who  surrenders 
his  estate  that  it  may  not  pay  dower  to  his  widow;  the 
guardian  who  takes  advantage  of  his  ward's  minority  to 
allow  a  stranger  to  exercise  rights  which  properly  belong  to 


5.     JENKS:   EDWARD    I  151 

his  ward ;  the  man  who  warrants  title  to  land  and  then  re- 
fuses to  defend  it;  the  man  who  shams  illness  and  lies  in 
bed  to  delay  proceedings,  are  put  under  heavy  penalties; 
and  their  acts  are  not  allowed  to  prejudice  their  intended 
victims. 

Finally,  the  Statute  contains,  in  its  twenty-fourth  chapter, 
a  clause  of  which  lawyers  have  long  recognised  the  impor- 
tance, but  which  lay  historians  are  too  apt  to  regard  as  mere 
technical  jargon.  Carefully  concealed  under  the  guise  of  an 
administrative  regulation,  the  Statute  lays  it  down,  that  the 
chancery  officials,  through  whose  hands  must  pass  every  royal 
writ,  which  was  then,  and  still  is,  the  normal  beginning  of 
every  action  in  the  royal  courts,  need  no  longer  be  guided  by 
a  strict  adherence  to  precedent  in  the  issue  of  these  documents. 
It  is  sufficient  if  the  remedy  sought  and  the  circumstances  of 
the  case  are  like  those  for  which  writs  have  previously  been 
issued.  In  other  words,  principle,  not  precedent,  is  hence- 
forth to  guide  the  Chancellor  and  his  officials  in  the  issue  of 
writs. 

To  a  layman,  impatient  of  the  intricacies  of  legal  history, 
such  a  direction  may  seem  the  most  obvious  piece  of  official 
platitude.  In  truth,  it  covered  a  daring  attempt  at  com- 
pleting, by  a  master  stroke,  a  revolution  which  had  been 
gradually  proceeding  during  the  twelfth  and  thirteenth  cen- 
turies. Once  more  it  is  necessary  to  remind  the  reader,  that 
the  conception  of  the  Crown,  as  the  sole  fountain  of  justice, 
is  a  very  modern  conception  in  legal  history.  The  Crown  in 
the  later  Middle  Ages  was  but  one  of  many  competitors  for 
the  profitable  business  of  judicature.  The  Church,  the  feudal 
nobles,  the  chartered  boroughs,  the  merchant  guilds,  the  shire 
and  hundred  moots,  were  all  rivals,  more  or  less  formidable. 
And  any  premature  attempt  on  the  part  of  the  Crown  to 
claim  universal  and  exclusive  jurisdiction  would  assuredly 
have  led  to  the  fiercest  opposition,  even  if  it  had  not  resulted 
in  the  dissolution  of  the  State.  Time  was  on  the  side  of  the 
Crown ;  but  the  King  had  to  walk  warily,  and  to  be  content 
for  a  long  time  with  small  things.  Bit  by  bit,  as  chances 
offered,  the  royal  officials  filched  the  business  of  their  rivals ; 
and,  as  each  claim  was  established,  it  was  carefully  enshrined 


152     //.     FROM    THE    1100'S    TO    THE    1800'S 

as  a  precedent  in  that  Register  of  Writs,  which  was  one  of 
the  most  precious  possessions  of  the  royal  chancery.  If  an 
intending  litigant  could  bring  his  case  within  the  terms  of 
a  registered  writ,  well  and  good.  If  not,  the  King's  courts 
could  do  nothing  for  him.  He  might  have  the  best  case  in  the 
world  from  a  moral,  or  even  from  a  legal  point  of  view.  But 
his  remedy,  if  any,  lay  elsewhere.  With  sorrowful  hearts,  for 
they  disliked  "  turning  away  business,"  the  chancery  officials 
regretted  that  they  could  not  supply  the  desired  article.  The 
officials  knew  that  their  path  was  beset  with  dangers.  The 
bold  assertion  of  Henry  II.,  that  no  lawsuit  touching  the  title 
to  freehold  could  be  commenced  without  a  royal  writ,1  had 
played  no  mean  part  in  stirring  the  baronial  rising  under 
John ;  and  the  claim  had  been  solemnly  renounced  in  the 
Great  Charter.2  Now,  perhaps,  we  are  in  a  position  to  under- 
stand something  of  the  audacity  of  the  consimilis  cams  clause 
of  the  Statute  of  Westminster  the  Second,  which,  if  acted 
upon  to  its  full  extent,  would  have  left  it  open  to  ingenious 
chancery  officials  to  discover  analogies  of  existing  precedents 
in  the  case  of  every  intending  litigant.  But  its  comparative 
failure  is  another  signal  proof,  that  sound  legislation  is  little 
more  than  the  official  consecration  of  enlightened  public  opin- 
ion, and  that  "  fancy  "  or  premature  reforms  are  mere  waste 
of  words.  The  opposition  to  the  full  use  of  the  clause  came, 
not  merely  from  feudal  and  clerical  tribunals,  but  from  the 
King's  own  judges,  who  refused  to  recognise  as  valid  writs 
which,  in  their  view,  departed  too  widely  from  precedent,  no 
less  than  from  the  Parliaments  of  the  fourteenth  century, 
profoundly  jealous  of  a  power  which,  under  the  form  of 
mere  official  documents,  was  really  a  power  to  declare  the 
law  of  the  land.  The  final  victory  of  the  royal  juris- 
diction was  won,  by  the  skilful  use  of  fictions,  by  the  rise 
of  the  Court  of  Chancery,  and,  finally,  by  the  Reforma- 
tion, which  crushed  the  independence  of  the  Church  courts. 

'Even  Henry  did  not  dare  to  say  that  it  could  only  be  tried  in  a 
royal  court.  But  this  was,  of  course,  what  he  desired;  and  the  barons 
knew  it  quite  well. 

*"The  writ,  which  is  called  praecipe,  shall  no  longer  be  issued  to  any 
one  concerning  any  tenement,  to  the  loss  by  any  freeman  of  his- 
jurisdiction." 


5.     JENKS:   EDWARD    I  153 

It  could  not  be  achieved  by  a  single  clause  in  the  Statute  of 
Westminster  the  Second. 

To  the  same  year  (1285),  but  to  the  autumn  Parliament, 
belongs  the  credit  of  another  great  statute.  The  Statute  of 
Westminster  had  been  mainly  concerned  with  the  conduct  of 
the  ruling  classes  —  the  landowners  and  the  royal  officials. 
The  Statute  of  Winchester  is  almost  wholly  occupied  with 
the  humbler  ranks  of  the  community.  It  is  much  shorter,  far 
simpler,  but  even  more  comprehensive  than  its  predecessor, 
and  its  purpose  is  clear  as  the  day.  Jt  insists  that  every  man, 
rich  and  poor  alike,  has  active  duties  of  citizenship  to  per- 
form; that  the  good  citizen  is  not  merely  to  abstain  from 
disorder  and  crime,  sitting  by  with  folded  hands  whilst  others 
defy  the  law,  but  that  he  is  bound  to  assist  the  forces  of  order 
and  good  government.  Three  simple  but  comprehensive 
duties  are  imposed  upon  every  citizen  by  the  Statute.  He  is 
to  report  every  felon  whose  offence  he  may  witness  or  hear  of, 
and  take  an  active  part  in  pursuit  of  him.  He  must  person- 
ally assist  in  maintaining  the  police  of  the  country,  by  serving 
in  the  Watch,1  and  by  helping  to  clear  the  highways  from  the 
growth  of  underwood  which  affords  such  a  convenient  refuge 
for  thieves  and  murderers.  He  must,  at  least  so  long  as  his 
years  permit,  provide  and  maintain  himself  with  arms  regu- 
lated according  to  his  means,  and,  twice  a  year,  present 
himself  at  the  View  of  Armour  held  in  his  Hundred,  that  the 
King  may  know  the  condition  of  his  militia  forces.  The 
Statute  of  Winchester  is  deeply  interesting;  it  contains  just 
that  surviving  fragment  of  the  old  Saxon  system  of  local 
autonomy  which  was  adopted  by  the  strong  central  govern- 
ment of  the  Plantagenet  Kings.  It  is  silent,  of  course,  as  to 
the  strictly  popular  elements  in  the  old  system ;  and  it  is 
probable  that  these  disappeared  rapidly  before  the  increasing 
vigour  of  the  central  government.  The  two  Constables  of  the 
Hundred  mark  the  beginning  of  a  new  era  in  the  history  of 

irThe  Watch  is  to  be  kept  every  night  from  Ascension  Day  to 
Michaelmas.  The  writer  has  never  been  able  to  understand  why  the 
winter  nights  were  left  unguarded.  Was  it  because  in  the  winter  there 
was  little  to  steal,  or  because  thieves  were  too  lazy  to  turn  out,  or 
because  the  health  of  the  Watch  would  have  been  injured  by  the  cold 
weather? 


154    //.     FROM    THE    1100'S   TO    THE    1800'S 

English  local  government,  in  which  local  officials,  though 
preserving  a  good  deal  of  healthy  independence,  are  brought 
into  direct  contact  with  the  central  administration.  The 
genuineness  of  Edward's  interest  in  the  Statute  is  shewn  by 
the  frequent  appointment,  in  the  succeeding  years,  of  "  Con- 
servators of  the  Peace,"  charged  with  enforcing  the  duties 
prescribed  by  the  enactment;  and  this  step  seems  to  have 
been  the  direct  forerunner  of  the  great  institution  of  the 
Justices  of  the  Peace,  which  has  a  continuous  history  from  the 
end  of  the  fourteenth  century.1  Obedience  to  the  Statute 
was  ultimately  enforced  by  the  simple,  but  very  effective 
expedient,  of  holding  the  local  unit  responsible  as  a  whole  for 
the  neglect  of  any  of  its  inhabitants. 

But  the  wondrous  activity  of  the  year  1285  did  not  end 
with  the  Statutes  of  Westminster  and  Winchester.  In  the 
same  year,  Edward  defined,  by  the  so-called  Statute  of  Cir- 
cumspecte  Agatis,  which  is,  in  truth,  nothing  more  than  an 
official  regulation,  addressed  to  his  judges  respecting  their 
behaviour  in  the  diocese  of  Norwich,  but  which  was  accepted 
as  a  general  declaration  of  royal  policy,  his  attitude  on  the 
delicate  question  of  ecclesiastical  jurisdiction.  The  King  had 
already  taken  up  a  decided  position  on  the  equally  delicate 
subject  of  the  acquisition  of  lands  by  the  Church,  when,  in 
1279,  by  the  first  Statute  of  Mortmain,  he  had  announced  his 
intention  of  rigidly  enforcing  the  policy  of  the  Great  Charter. 
No  person,  cleric  or  lay,  was,  without  royal  license,  to  vest 
lands  by  way  of  perpetual  succession  in  a  monastery  or  other 
body  not  subject  to  the  ordinary  chances  of  death,  upon  pain 
of  forfeiture  of  the  land  in  question.  This  policy,  com- 
menced in  the  natural  dislike  of  the  feudal  nobles  to  a  practice 
which  deprived  them  of  the  incidental  windfalls  of  wardships, 
marriages,  fines  on  admission  of  new  tenants,  and  the  like, 
was  warmly  seconded  by  the  King,  who  saw  the  grave  public 
danger  of  allowing  land  which  represented  a  liability  to 
military  service  to  get  into  the  hands  of  clerics  who  claimed 
exemption  from  such  duties,  and  whose  tenacious  grip  would 

'The  "Conservators"  were,  like  the  later  "Justices,"  local  land- 
owners of  a  certain  estate.  (See  the  case  of  Lawrence  Basset,  Par/. 
Writt,  I,  p.  389.) 


5.     JENKS:   EDWARD    I  155 

« 

effectually  prevent  its  coming  again  into  the  market.  For 
once,  Edward  and  his  barons  were  at  one;  and  the  Statute 
of  1279  was  supplemented  by  certain  useful  clauses  in  the 
Statute  of  Westminster  the  Second.  Moreover,  this  same 
enactment  contained  a  salutary  clause,  compelling  the  clerical 
authority,  which  claimed  a  share  in  the  goods  of  every  man 
who  died  without  making  a  will,  to  satisfy  the  debts  of  the 
deceased  out  of  the  assets  coming  to  its  hands.  But  the  Stat- 
ute Circumspecte  Agatis  makes  no  extreme  claims.  In  all 
suits  really  spiritual,  such  as  the  enforcement  of  penances  for 
deadly  sin,  the  infliction  of  penalties  for  neglect  of  the  fabric 
of  a  church  or  of  a  churchyard,  the  claim  by  a  parson  to 
tithes,  mortuaries,  oblations,  or  other  customary  dues,  even 
claims  to  the  proceeds  of  benefices  (so  long  as  the  titles  to 
the  benefices  themselves  are  not  in  dispute),  and  in  actions  for 
violence  to  a  clerk,  or  for  defamatory  words,  the  King's 
judges  are  not  to  interfere  by  the  issue  of  a  Prohibition.  On 
the  other  hand,  the  King  provides  the  judges  with  a  list  of 
matters  properly  belonging  to  the  royal  jurisdiction,  and  the 
list,  long  as  it  is,  amply  establishes  the  position  so  frequently 
insisted  upon  in  these  pages,  that  the  jurisdiction  of  the  royal 
tribunals  was,  even  in  Edward's  reign,  a  jurisdiction  which 
was  being  slowly  being  built  up,  bit  by  bit,  in  the  struggle 
of  many  rivals.  A  truly  liberal  regulation,  variously  attrib- 
uted to  the  years  1286,  1290,  and  1296,  but  probably  belong- 
ing to  the  year  1290,  provided  for  the  contingency  of  a 
Prohibition  being  issued  in  a  case  in  which  the  King's  courts 
did  not  provide  a  remedy.  In  such  a  case,  the  King's  official 
(the  Chancellor  or  Chief  Justice),  having  satisfied  himself 
of  the  possibility  of  a  failure  of  justice,  is  to  write  to  the 
ecclesiastical  judge,  bidding  him  to  proceed  notwithstanding 
the  Prohibition. 

The  last  piece  of  legislation  to  be  noticed,  in  this  fruitful 
year  (1285),  is  an  Ordinance  for  the  government  of  London, 
which  seems  to  have  been  published  just  before  its  close. 
Evidently,  Edward  could  not  bring  himself  to  forgive  entirely 
the  great  city  which  had  taken  up  arms  against  his  father, 
and  insulted  his  mother.  He  steadily  refuses  to  recognjse  the 
Mayor  as  an  essential  feature  of  municipal  existence.  There 


156    //.     FROM    THE    1100'S    TO    THE    1800'S 

/ 

may  be  a  Mayor,  but  if  the  city  is  in  the  King's  hand  there 
will  be,  instead,  a  Warden  nominated  by  the  King,  who  will 
care  little  for  the  views  of  the  citizens.  Taverns  are  only  to 
be  kept  by  fully  qualified  citizens,  and  are  to  be  closed  rigidly 
at  curfew.  No  one  is  to  teach  fencing  within  the  limits  of  the 
city.  Each  alderman  is  to  hold  frequent  enquiries  as  to  the 
presence  of  malefactors  within  his  ward,  and  to  send  all  whom 
he  may  discover,  in  safe  custody,  to  the  "  Warden  or  Mayor." 
No  roysterer  or  other  serious  disturber  of  the  peace  is  to  be 
let  out  on  bail,  without  the  express  warrant  of  the  "  Warden 
or  Mayor ; "  and  no  broker  is  to  carry  on  business  until  he 
has  been  presented  and  sworn  before  the  "  Warden  or 
Mayor  "  to  exercise  his  craft  honestly.  Incidentally,  the  or- 
dinance is  of  interest,  as  revealing  the  fact  that  London,  even 
in  1285,  was  already  a  cosmopolitan  city,  which  attracted 
wanderers  from  all  lands,  some  of  whom  "  nothing  do  but 
run  up  and  down  through  the  streets,  more  by  night  than  by 
day,  and  are  well  attired  in  clothing  and  array,  and  have 
their  food  of  delicate  meats  and  costly." 

The  three  glorious  years,  1283-85,  have  only  twice  been 
rivalled  for  honourable  activity  in  the  annals  of  English 
statesmanship.  Once  in  the  sixteenth  century,  when  the 
Reformation  Parliament  of  Henry  VIII.  set  itself,  under  the 
guidance  of  the  King  and  his  ministers,  to  the  reconstruction 
of  the  national  Church,  and  once  in  the  nineteenth,  when  a 
spontaneous  outburst  of  epoch-making  legislation  followed 
on  the  assembly  of  the  first  reformed  Parliament,  has  the 
history  of  English  law  a  parallel  to  offer.  Had  those  three 
years  been  the  utmost  limits  of  Edward's  reign,  he  must  have 
come  down  to  us  as  one  of  the  greatest  and  wisest  of  rulers, 
who  surveyed  the  body  politic  in  all  its  members,  and  laid 
his  healing  hand  on  every  sore.  But  when  we  reflect  that 
those  years  were  but  a  fraction  of  a  long  reign  of  thirty-five 
years,  and  of  a  public  life  which  covered  at  least  half  a 
century ;  when  we  call  to  mind,  that  the  man  who  put  forth 
the  Statutes  of  Acton  Burnel,  Rhuddlan,  Westminster  the 
Second,  and  Winchester,  was  the  hero  of  the  Barons'  War, 
the  Crusader,  the  framer  of  the  Hundred  Rolls  and  the 
guide  of  the  Quo  Warranto  enquiry,  the  conqueror  of  Wales, 


5.     JENKS:   EDWARD    I  157 

the  arbiter  of  Scotland,  the  organiser  of  the  coast  guard,  the 
unflinching  opponent  of  Papal  aggression,  and  the  sum- 
moner  of  the  Model  Parliament;  when  we  remember, 
that  his  name  was  as  great  abroad  as  at  home,  that  he 
ranked  as  the  equal  of  Philip  of  France,  and  the  superior  of 
the  Kings  of  Aragon,  Castile,  and  Sicily,  and  of  the  princes 
of  the  Netherlands;  when,  finally,  we  discover,  that  the 
mighty  statesman  was  also  the  faithful  and  affectionate  son 
and  husband,  the  wise  and  patient  father,  the  patron  of  merit, 
and  the  supporter  of  true  piety;  then  we  shall  realise  that 
few  such  monarchs,  nay,  few  such  men,  have  held  up  the 
pattern  to  poor  humanity.  It  is  easy  to  say  that  Edward 
draws  the  credit  which  of  right  belongs  to  his  ministers. 
Doubtless,  much  of  the  wisdom  of  his  legislation  was  due  to 
the  advice  of  his  officials,  who  knew  exactly  the  weak  points 
in  the  ship  of  State.  But  there  is  also  much  reason  to  believe 
that,  among  Edward's  troubles,  were  too  often  to  be  reckoned 
the  follies  of  those  who  should  have  been  his  support  and  stay. 
Robert  Burnel  was  a  notorious  profligate,  even  though  he 
was  Chancellor  of  England  and  Bishop  of  Bath  and  Wells. 
Antony  Bek  was  a  turbulent  priest  who,  but  for  Edward's 
steady  watchfulness,  might  have  proved  a  second  Becket. 
Ralph  Hengham,  Thomas  of  Weyland,  and  their  fellow 
judges  were,  as  we  shall  see,  heroes  of  the  greatest  judicial 
scandal  in  English  history.  Adam  of  Stratton,  one  of  the 
chief  officials  of  the  Exchequer,  was  a  corrupt  scoundrel.  If, 
in  spite  of  these  notorious  exceptions,  Edward  managed  to 
attract  able  and  upright  servants,  the  credit  is  surely  due  to 
him.  A  King  usually  gets  the  ministers  he  deserves. 

So  we  part  from  the  brightest  chapter  in  Edward's 
career.  .  .  . 

It  would  be  a  great  mistake  to  suppose  that  Edward 
created,  or  intended  to  create,  a  Parliament  in  the  sense  in 
which  we  now  understand  the  term.  At  the  present  day  Par- 
liament performs  four  great  functions.  It  legislates,  it 
ventilates  grievances,  it  criticises  the  details  of  administra- 
tion, it  provides  money.  The  last  of  these  functions  alone  was 
assigned  to  it  by  Edward,  at  least  so  far  as  the  elected 
members  were  concerned.  The  orthodox  form  of  the  sum- 


158    //•     FROM    THE    1100'S    TO    THE    1800'S 

mons  to  the  shire  and  borough  members,  as  settled  by 
Edward's  ministers,  and  consecrated  by  six  hundred  years  of 
practice,  invites  them  "  to  do  "  what  shall  be  ordained  in  the 
premises.  There  can  be  no  doubt,  in  the  circumstances  of  the 
case,  that  the  phrase  "  to  do  "  (ad  faciendum)  was  merely 
a  polite  form  of  the  cruder  expression  "  to  grant  money," 
and  equally  little  doubt  that,  however  long  the  phrase  has 
been  a  mere  fiction,  it  originally  expressed  a  genuine  truth. 
The  clearest  proof  of  this  lies  in  the  fact,  that  when  the  King 
really  did  desire  the  counsel  of  humble  persons,  he  knew  how 
to  ask  for  it,  as  when  he  summoned  an  assembly  of  citizens  in 
1296  to  advise  him  on  the  settlement  of  the  borough  of 
Berwick-on-Tweed.  Not  for  nearly  four  hundred  years  did 
the  elected  members  of  Parliament  make  good  their  claim, 
except  in  times  of  revolution,  to  criticise  the  royal  adminis- 
tration, or  to  cause  the  removal  of  the  King's  ministers. 

As  a  matter  of  fact,  the  elected  members  were  far  more 
anxious  to  establish  another  right,  and  their  anxiety  was 
wise.  In  all  probability  they  had  not  the  knowledge  necessary 
to  make  them  useful  critics  of  the  royal  administration.  But 
they  were  an  admirable  machinery  for  the  collection  of  pop- 
ular  grievances.  The  right  of  presenting  petitions  to  a 
monarch  is  so  useful  to  the  ruler  himself,  that  it  is  very  rarely 
denied,  even  by  Oriental  despots.  Nothing  is  so  dangerous 
to  the  security  of  a  throne  as  the  existence  of  secret  discontent, 
which  the  sufferers  despair  of  being  able  to  bring  to  the  royal 
ear.  Long  before  Parliament  came  into  existence,  the 
English  kings  received  petitions  from  their  subjects.  But  the 
fate  of  the  petitions  was  precarious.  First  the  king  had  to 
be  found;  and  only  students  of  history  can  realise  the 
activity  and  elusiveness  of  a  medieval  king.  When  found, 
the  king  had  to  be  approached,  often  through  a  crowd  of 
courtiers  and  officials,  who  were  none  too  anxious  to  help  the 
suppliant.  Then  there  was  the  weary  waiting  for  a  reply. 
All  these  difficulties  disappeared,  as  by  magic,  with  the 
institution  of  Parliament.  The  Parliament  was  summoned  to 
meet  the  king.  Its  presence  could  not  be  ignored.  The 
distant  petitioner  could  entrust  his  plaint  to  the  hands  of  his 
elected  knight  or  burgess.  The  wages  of  the  knight  or  bur- 


5.     JENKS:   EDWARD    I  159 

gess  could  be  stopped  if  he  did  not  do  his  duty ;  for  they  were 
paid  by  his  constituency,  not  by  the  royal  treasury.  Above 
all,  the  knights  and  burgesses  soon  found  that  they  had  a 
powerful  weapon  in  their  hands.  They  could  refuse  to  grant 
taxes  until  the  petitions  which  they  had  presented  had  been 
carefully  considered  and  properly  answered  by  the  Crown. 
Thus  the  great  constitutional  principle,  that  redress  of  griev- 
ances precedes  supply,  came  slowly  to  light  in  Edward's  reign. 
Thus,  also,  we  see  the  meaning  of  the  careful  apportionment 
in  the  Michaelmas  Parliament  of  1280,  and  so  often  after- 
wards, of  the  numerous  petitions  presented  at  the  assembling 
of  Parliament,  among  special  officials  or  specially  appointed 
committees,  and  the  appearance  of  the  Receiver  of  Petitions 
as  a  regular  Parliamentary  official.  In  fact,  the  merest 
glance  through  the  records  of  Edward's  Parliaments  is 
sufficient  to  convince  the  student,  that  the  main  business  of 
the  session  was  the  discussion  and  remedy  of  individual  griev- 
ances, while  specially  difficult  or  specially  "  prerogative " 
lawsuits  form  the  other  great  item  of  work.  These  latter, 
after  a  few  years,  constituted  the  sole  contents  of  the  coram 
rege  Rolls  of  the  King's  Bench;  while  the  private  petitions 
which  play  so  large  a  part  in  the  records  of  Edward's  Parlia- 
ment disappeared  from  the  rolls,  and  became  the  "  private 
bills  "  of  a  later  day.  Thus  the  "  public  bills,"  which  are  so 
scanty  on  the  rolls  of  Edward's  time,  —  the  bills  or  petitions 
promoted  by  the  King's  ministers,  or  by  the  magnates,  or  by 
the  "  community  "  or  "  communities  "  of  the  realm,  —  at  last 
became  the  staple  material  of  the  Parliament  Rolls,  being 
engrossed  in  their  final  shape  on  the  Statute  Roll  of  the  King- 
dom. For  that  was  the  final  work  accomplished  by  Parlia- 
ment. It  fused  the  thousand  diverse  interests  of  shires  and 
boroughs,  clergy  and  laity,  magnates  and  humble  folk,  into 
one  national  whole;  and  made  possible  the  existence  of 
national  legislation. 

And  so  we  come,  finally,  to  Edward's  position  as  a  legisla- 
tor, and  to  the  title  which  he  has  acquired,  of  "  the  English 
Justinian."  Like  most  other  popular  titles,  it  covers  a 
certain  amount  of  truth.  Justinian,  reigning  over  an  empire 
whose  civilisation  had  been  growing  for  a  thousand  years, 


160    //•     FROM   THE   1100'S   TO    THE    1800'S 

summed  up  the  legal  history  of  that  civilisation  in  a  series  of 
works,  which  has  become  one  of  the  priceless  possessions  of 
Western  life.  In  the  Digest,  or  Pandects,  he  summarised, 
by  a  ruthless  process  of  excision  and  compression,  the  works 
of  that  famous  body  of  Roman  jurists  which  was  the  boast  of 
the  earlier  Roman  Empire.  To  this  he  added  a  Code,  or 
collection  of  imperial  statutes,  the  second  edition  of  which 
has  been  accepted  as  an  integral  part  of  the  Corpus  Juris 
C'wilis.  These  again  he  supplemented  by  an  admirable  little 
Primer  of  Law,  or  Institutes,  founded  on  the  similar  treatise 
of  a  great  Roman  jurist,  who  had  been  dead  three  hundred 
years  when  Justinian  ascended  the  throne.  Finally,  he  him- 
self contributed  upwards  of  a  hundred  "  Novels,"  or  new 
•  statutes,  to  the  legislative  activity  of  the  Byzantine  Empire. 
With  the  authority  of  one  who  still  believed  himself  to  be  the 
world's  master,  he  forbade  all  criticism  of  his  completed  work, 
and  all  reference  to  other  sources  of  authority.  Within  the 
covers  of  the  Corpus  Juris  would  be  found,  he  insisted,  an 
answer  to  every  legal  difficulty  which  could  possibly  arise  to 
vex  the  minds  of  his  subjects. 

The  work  of  Justinian  was,  in  itself,  a  great  work,  and 
would,  at  all  times,  have  commanded  the  respect  of  the  world. 
But,  owing  to  the  special  circumstances  of  its  fate,  it  achieved 
a  success  such  as  has  not  been  secured  by  more  than  a  dozen 
other  books  in  the  world's  history.  It  became,  in  fact,  the 
secular  Bible  of  Christendom,  second  only  in  authority  and 
influence  to  the  Sacred  Scriptures.  The  age  which  produced 
it  was  a  literary  age,  the  ages  which  followed  it  were  rude  and 
ignorant.  Even  in  its  decay,  the  mighty  Roman  Empire 
contrasted  forcibly  with  the  crowd  of  petty  princedoms  into 
which  it  broke  up.  The  rude  barbarian  princes  of  Europe 
listened  with  awe  to  the  pages  which  spoke  to  them  of  a  civili- 
sation so  far  above  their  own.  At  first  the  Corpus  Juris  was 
known  to  them  only  through  hasty  and  crude  adaptations, 
made  by  the  orders  of  the  conquering  chieftains  of  the  Teu- 
tonic invasions ;  but,  gradually,  as  Europe  settled  down  after 
the  storms  of  the  Dark  Ages,  the  pure  text  was  received  into 
the  homes  of  the  new  learning,  and  ardent  students  of  the 
precious  volumes  carried  the  fame  of  their  wisdom  from  the 


5.     JENKS:    EDWARD    I  161 

schools  of  Bologna,  Pisa,  and  Padua,  to  the  Courts  of 
Europe.  At  first  the  Church  had  no  word  of  blame  for  the 
new  movement ;  for  the  Byzantine  Empire,  though  schismatic 
according  to  later  Western  ideas,  was  a  Christian  Empire, 
and  Justinian's  Code  accorded  due  honour  to  Bishop  and 
Church.  And,  even  after  the  Church,  pursuing  her  new 
policy  of  isolation,  had  forbidden  her  priests  to  study  the 
"  secular  "  or  "  imperial "  laws,  and  had  set  up  a  formidable 
rival  in  the  Canon  Law,  the  enthusiasm  of  the  students  of  the 
Roman  Law  abated  not  a  whit.  In  fact,  the  sincere  flattery 
of  imitation  was  accorded  to  Justinian's  work  by  the  Papal 
legislators,  who  compiled  their  Corpus  Juris  Canonici  on  that 
very  model  which  the  Corpus  Juris  Civilis  had  seemed  to  ren- 
der inevitable.  And,  in  drawing  a  sharp  line  between  the 
professors  of  the  Civil  and  the  Canon  Laws,  the  Papacy  made 
one  of  its  most  fatal  mistakes,  by  alienating  from  its  service 
a  body  of  men  who,  for  the  first  time  in  the  history  of  Western 
Christendom,  made  a  serious  inroad  upon  the  intellectual 
monopoly  of  the  Church. 

As  a  very  natural  result,  the  nations  of  Western  Europe, 
or  rather  their  rulers,  began,  at  the  end  of  the  Middle  Ages, 
to  look  upon  the  Corpus  Juris  of  Justinian,  not  merely  as  a 
monument  of  Roman  greatness,  but  as  a  complete  code  of 
conduct  for  the  guidance  of  secular  affairs.  Realising  fully, 
that  the  barbarous  local  customs  of  their  own  peoples,  and 
even  the  general  maxims  of  feudalism,  offered  no  satisfactory 
guides  for  the  new  world  of  commerce  which  was  growing  up 
around  them,  they  turned  more  and  more  for  the  solution 
of  new  and  complicated  problems  to  the  ever  ready  pages 
of  the  Digest  and  the  Code.  In  some  cases,  as  in  Spain,  the 
Roman  Law  spoke  of  a  past  which  men  were  proud  to  con- 
trast with  the  present.  There,  the  compilation  of  the  Siete 
Partidas,  modelled  on  the  seven  years  of  the  legal  curriculum 
in  the  Roman  Law  schools,  was  the  Christian's  badge  of 
defiance  to  the  hated  but  impressive  Saracen.  In  others, 
as  in  Southern  France,  the  continuity  between  the  city  life 
of  the  Roman  provinces,  and  the  city  life  of  Gascony  and 
Aquitaine,  was  at  least  a  cherished  tradition ;  and  it  was 
natural  that  Southern  France  should  be  a  pays  du  drolt  ecrit. 


162     //.     FROM    THE    1100'S    TO    THE    1800'S 

But,  that  Germany  and  Scotland  l  should  accept  the  Corpus 
Juris  of  Justinian  is,  apparently,  so  wild  a  freak  of  history 
as  to  deserve  at  least  a  passing  wonder.  And  this  wonder  is 
increased  by  the  discovery  that  England,  so  closely  allied 
with  Scotland  and  Germany  in  the  course  of  history,  so  like 
them  in  civilisation,  so  near  them  in  geographical  position, 
at  the  critical  moment,  rejected  the  Roman  Law,  and  went 
off  on  an  entirely  different  course.  And  this  critical  moment 
is  the  reign,  or  at  least  the  lifetime,  of  Edward  Plantage- 
net. 

The  explanation  is  twofold.  It  lies  partly  in  the  notion 
which  men  then  held  of  Law,  partly  in  the  circumstances 
of  English  history.  It  would  be  very  easy  to  wander  grad- 
ually into  speculations  as  to  the  nature  of  Law,  which  would 
land  us  in  a  hopeless  quagmire  of  confusion.  "  Law  "  is  one 
of  those  familiar  words  which  everybody  thinks  he  under- 
stands, until  he  tries  to  explain  them.  But,  briefly  speaking, 
the  notion  of  Law,  in  the  thirteenth  century,  vibrated  between 
three  different  conceptions.  One  was,  that  Law  was  a  divine 
or,  at  least,  a  philosophical  ideal,  which  could  only  be  dis- 
covered by  great  wisdom  and  patient  study.  Men  ought  to 
conform  their  lives  to  a  high  ideal.  And,  as  the  Scriptures 
dealt  mainly  with  principles  and  generalities,  a  system  of 
Law  was  necessary  to  define  details.  The  supporters  of  this 
view  urged  the  adoption  of  the  Corpus  Juris  as  the  required 
ideal.  Nowhere  else,  they  urged,  was  it  possible  to  find  such 
profound  wisdom  applied  to  the  details  of  secular  affairs. 
The  revival  of  learning  tended  to  give  immense  weight  to 
the  writings  of  the  ancients;  and  Europe  in  the  thirteenth 
century  was  far  too  uncritical  to  distinguish  between  the 
dates  of  Aristotle,  Virgil,  and  the  Roman  jurist,  Gaius.  They 
were  all  "  ancients,"  and  that  was  enough. 

But  it  is  doubtful  whether  the  Corpus  Juris  would  ever 
have  obtained  its  immense  success,  had  it  not  itself  ostensibly 
maintained  a  second  conception  of  Law,  which  had  always 
found  favour  with  a  certain  very  important,  if  limited,  class 

'It  was,  of  course,  long  after  the  thirteenth  century  that  Germany 
and  Scotland  received  the  Roman  Law.  But  the  fact  is  none  the  less 
striking  on  that  account. 


5.     JENKS:   EDWARD    I  163 

of  persons.  "  The  pleasure  of  the  Prince  has  the  force  of 
Law,"  is  one  of  the  best-known  maxims  of  the  Institutes; 
and  we  can  well  imagine  that  the  sentence  would  not  be  unac- 
ceptable from  the  lips  of  a  courtier.  As  a  fact,  of  course, 
the  Corpus  Juris  of  Justinian  had  been  compiled  in  the  days 
of  a  despotism  the  completest,  though,  it  must  be  admitted, 
also  the  wisest,  which  the  world  has  ever  seen.  In  the  sys- 
tem of  the  later  Roman  Empire,  everything  centred  in 
the  person  of  the  Prince,  and  his  will  was  final  and  abso- 
lute. 

How  near,  how  very  near,  England  was  to  the  adoption 
of  a  system  based  on  the  principles  of  the  Corpus  Juris,  few 
but  professed  historians  know.  Two  facts,  small  in  them- 
selves, but  very  significant,  reveal  the  possibilities  of  the  situ- 
ation more  clearly  than  pages  of  vague  description.  One  is, 
that  Edward  for  years  maintained  in  his  pay,  as  his  trusted 
adviser,  Francesco  Accursi,  himself  a  learned  s-tudent  and 
professor  of  the  Roman  Law,  and  the  son  of  the  still  more 
famous  Accursi,  the  author  of  the  Great  Gloss,  and  the  con- 
temporary and  fellow  townsman  of  that  Azo  to  whom  Brae- 
ton  was  indebted  for  so  much  of  his  language.  The  other 
is,  that  an  anonymous,  but  highly  popular  law  book,  compiled 
in  the  late  thirteenth  century,  figures  the  Law  as  issuing 
from  the  mouth  of  the  king.  Evidently,  there  were  symp- 
toms, in  the  thirteenth  century,  of  a  very  powerful  alliance 
between  the  philosophical  and  the  military  conceptions  of 
Law. 

The  humble  alternative  of  these  two  lofty  notions  is  the 
view,  that  Law  is  nothing  but  the  formal  expression  of  the 
common  sense  of  the  average  man,  as  evidenced  by  his  daily 
practice.  In  other  words,  Law  is  the  formal  shape  into  which 
the  customs  of  average  men  are  translated  by  the  processes 
of  legislation  and  judicial  decision.  It  may  be  said  that  the 
conduct  of  the  average  man  is  influenced  unconsciously  by 
the  teachings  of  religion  and  philosophy,  and,  consciously, 
by  the  commands  of  authority.  That  may  be  so;  and  yet, 
just  as  it  is  true  that  the  average  man's  conduct  never  pre- 
cisely conforms  either  to  the  ideals  of  the  philosopher  or  to 
the  wishes  of  authority,  so  it  is  true,  that  custom  always 


164     //.     FROM    THE    1100'S    TO    THE    1800'S 

differs  substantially  both  from  religious  and  philosophical 
teaching,  and  from  the  injunctions  of  the  most  minute  arbi- 
trary directions.  But  it  is  not  true,  as  has  been  superficially 
argued,  that  a  system  of  Law  which,  like  the  English,  is 
based  on  custom,  is  merely  licensed  anarchy.  On  the  con- 
trary, it  acts  somewhat  severely  on  all  abnormal  persons, 
whether  they  be,  like  thieves  and  murderers,  mere  laggards 
in  the  march  of  civilisation,  or,  on  the  other  hand,  men  with 
advanced  ideas,  who  make  their  fellow-men  uncomfortable 
by  too  rapid  progress.  To  use  a  very  simple  simile,  drawn 
from  the  practice  of  the  examiner,  Law,  on  this  principle, 
aims  at  reproducing  the  best  works  of  the  second  class,  leav- 
ing out  of  account  the  geniuses  in  the  first  rank,  and  the 
dullards  in  the  third. 

This  conception  of  Law,  it  must  be  admitted,  offers  to 
the  ruler  of  a  country  which  adopts  it  a  somewhat  humble 
position.  He  cannot  pose  as  the  Heaven-sent  deviser  of  an 
ideal  system,  which  he  imposes  at  the  sword's  point  upon  a 
stupid  and  ignorant  people.  But  his -task  is,  for  all  that, 
an  important  one,  none  the  less  important  that  it  makes  no 
superhuman  demands  upon  the  intellect.  To  put  it  briefly, 
he  has  to  collect,  to  harmonise,  and  to  formulate.  It  is  only 
in  quite  recent  years  that  we  have  known  how  these  humble 
processes  went  on  in  England  during  the  lifetime  of  Edward. 
For  the  first  two  he  can  hardly  claim  the  credit;  the  last 
has  won  him  the  title  of  the  English  Justinian. 

One  of  the  essential  conditions  of  Law  is  uniformity.  But 
this  condition  did  not  exist  in  the  England  of  the  early 
twelfth  century,  when  the  royal  justices  first  began  those 
circuits  of  the  shires  which  have  been  one  of  the  most  im- 
portant features  in  the  domestic  history  of  the  country  for 
the  last  seven  hundred  years.  These  justices  found  that 
each  county,  almost  each  district,  had  its  own  local  customs, 
differing,  ever  so  slightly  perhaps,  but  still  differing,  from 
the  customs  of  its  neighbours.  As  more  and  more  cases  came 
before  the  royal  courts,  as  more  and  more  juries  delivered 
their  verdicts  in  answer  to  royal  enquiries,  more  and  more 
clear  did  this  truth  become.  But,  on  the  other  hand,  more 
and  more  did  the  royal  officials  come  to  know  of  the  customs 


5.     JENKS:   EDWARD    I  165 

of  the  land.  The  clerkly  skill  of  the  Norman  and  the  An- 
gevin official  made  ever  more  and  more  plain  the  habits  and 
practices  of  the  people.  Greater  and  greater  grew  the  col- 
lection of  Plea  Rolls  which  accumulated  in  the  King's  Ex- 
chequer. Thus  the  materials  for  a  Common  Law  were 
collected. 

Then  came  a  man  with  a  great  love  of  order  and  symmetry, 
a  man  capable  of  casting  the  work  of  the  previous  century 
into  a  compact  and  harmonious  form.  This  man  was  Henry 
of  Bratton,  or,  as  we  call  him,  "  Bracton."  No  man  could 
have  been  better  fitted  for  the  task.  In  spite  of  his  borrow- 
ings from  Azo,  and  his  references  to  Digest  and  Institutes, 
he  did  not,  perhaps,  know  very  much  of  Roman  Law.  But 
he  knew  something  of  it,  and,  as  a  cathedral  chancellor,  he 
must  also  have  known  something  of  the  Canon  Law.  But, 
above  all,  as  an  experienced  royal  justice,  deeply  learned 
in  the  practice  of  the  royal  courts,  he  had  unique  qualifi- 
cations for  his  task.  The  vital  point  in  his  work  is  that, 
whilst  occasionally  borrowing  the  language  and  arrange- 
ment of  the  Roman  Law,  whilst  courtly  in  his  references  to 
the  King,  and  civil  to  his  brother  ecclesiastics,  he  draws  the 
body  and  bones  of  his  work  from  the  records  of  the  Bench 
and  circuit  courts.  This  fact,  long  suspected  from  internal 
evidence  by  intelligent  students,  has  been  finally  established, 
within  the  last  twenty  years,  by  the  discovery  of  the  very 
materials  used  by  Bracton  in  writing  his  great  book.  Hav- 
ing access,  by  virtue  of  his  official  position,  to  the  Plea  Rolls, 
he  made  from  them  a  collection  of  some  two  thousand  cases,1 
and  from  this  collection  he  drew  the  rules  which  compose  his 
book.  For  a  century  the  work  of  assimilation  had  been  going 
on  throughout  England,  no  doubt  largely  through  the  efforts 
of  the  justices  themselves.  A  nation  had  been  slowly  born, 
with  a  consciousness  of  unity,  and  a  willingness  to  give  up 
minor  differences  for  the  sake  of  that  unity.  How  much  of 
the  process  was  due  to  Bracton,  how  much  to  his  predecessors, 
it  is  not  possible  to  say,  though,  in  many  cases,  we  know 

1The  MS.  containing  these  cases  was  discovered  by  Professor  Vino- 
gradoff  in  the  British  Museum  in  1884,  and  has  been  lucidly  edited  by 
Professor  Maitland,  under  the  title  of  Bracton's  Notebook  (Cambridge 
Press,  1887). 


166    //•     FROM    THE   1100'S    TO    THE    1800'S 

the  very  names  of  the  men  to  whom  he  attributes  those  deci- 
sions which  have  become  part  of  English  Law.  But  to  him, 
at  least,  is  due  the  credit  of  having  cast  into  harmonious 
and  enduring  shape  a  huge  mass  of  material  which  had  been 
slowly  accumulating.  Still  the  different  local  customs  lin- 
gered on,  in  the  local  courts  of  the  manor,  the  borough,  and 
the  shire.  But  these  were  every  day  dwindling  beside  the 
vigorous  growth  of  the  royal  courts;  and  for  the  royal 
courts  there  was  now  a  Common  Law,  a  law  common  to  all 
the  realm. 

Bracton's  book  was  given  to  the  world  only  a  few  years 
before  Edward  ascended  the  throne.  Edward's  task  was  to 
give  it  free  play.  For  the  first  time,  English  Law  could  be 
thought  of  as  a  whole,  as  a  body  which  could  grow  and 
develop.  Bracton's  treatise  had  stated,  not  only  the  rules 
of  conduct  themselves,  but  the  legal  procedure  by  which  they 
could  be  enforced.  In  so  doing,  it  had  revealed  some  anom- 
alies and  many  imperfections.  These  it  was  the  peculiar 
province  of  the  King  to  remedy;  for  the  courts  which  they 
affected  were  his  courts.  It  is  astonishing  how  much  of  Ed- 
ward's celebrated  legislation  is  concerned  with  matters  of 
procedure.  In  the  substance  of  the  Law  there  were  still  moot 
points.  These  the  King  could  settle,  as  he  did  in  the  case  of 
De  Donis  (before  noticed),  where  he  had  to  take  the  reac- 
tionary side,  and  in  the  case  of  Quia  Emptores  (before  no- 
ticed), where  progress  won  a  decided  victory.  But,  per- 
haps unconsciously,  he  did  the  greatest  thing  for  the  future 
of  English  Law  when  he  called  into  existence  the  National 
Parliament.  For,  better  even  than  the  judges  on  circuit, 
the  elected  members  of  Parliament  knew  the  customs  of  the 
people,  and,  with  the  aid  of  their  counsel  and  advice,  future 
kings  could  formulate  from  time  to  time  the  rules  of  English 
Law.  And  thus  provision  was  made  for  the  perpetual  con- 
tinuance of  that  process  of  collection  which  had  been  begun 
by  the  King's  justices,  and  which  had  to  be  done  over  and 
over  again  if  Law  was  to  keep  abreast  of  national  progress. 
Not  until  Edward  is  dead  do  we  fin'd  in  the  statute  book  the 
honoured  formula  which  describes  the  King  as  enacting 
"  with  the  advice  and  consent  of  the  lords  spiritual  and  tern- 


5.     JENKS:   EDWARD    I  167 

poral  and  the  commons  in  Parliament  assembled ;  "  l  but  this 
consummation  became  clearly  inevitable,  from  the  day  on 
which  the  Model  Parliament  assembled  at  Westminster  in 
November,  1295.  To  explain  all  that  it  means  it  would  be 
necessary  to  write  the  comparative  history  of  the  States 
of  Western  Europe,  and  to  show  how  the  history  of  Eng- 
land has  been  so  different  from  the  history  of  France,  of 
Italy,  of  Germany,  and  of  Spain.  Briefly  put,  to  close  an 
already  overlong  chapter,  it  meant  the  creation  of  that  na- 
tional and  political  unity  which,  until  quite  modern  days, 
was  the  highest  achievement  of  European  statesmanship ; 
it  meant  the  appearance  on  the  world's  horizon  of  that  new 
star,  which  was  to  light  the  nations  on  their  march  to  free- 
dom. For  the  ideals  and  principles  adopted  by  the  English 
people  under  the  rule  of  Edward,  were  not  merely  the  ideals 
and  principles  which  nerved  the  arm  of  the  Puritan  soldier, 
and  raised  the  banner  of  defiance  against  Napoleon.  They 
were  the  ideals  and  principles  which,  despite  the  excesses 
of  the  French  Revolution,  struck  the  fetters  of  tyranny  from 
the  limbs  of  Western  Europe,  and  breathed  the  spirit  of 
justice  and  freedom  into  the  mighty  Commonwealths  of 
America  and  Australia. 

1  The  first  equivalent  seems  to  be  the  preamble  of  the  Statute  of  York 
in  1318.    But  the  Statute  of  Carlisle  came  very  near  it. 


6.     ENGLISH   LAW    AND   THE    RENAISSANCE1 

BY  FREDERIC  WILLIAM  MAITLAND  2 

WERE  we  to  recall  to  life  the  good  Sir  Robert  Rede 
who  endowed  lectures  in  this  university,  we  might 
reasonably  hope  that  he  would  approve  and  admire  the  fruit 
that  in  these  last  years  has  been  borne  by  his  liberality.  And 
then,  as  in  private  duty  or  private  interest  bound,  I  would 
have  him  speak  thus :  "  Yes,  it  is  marvellous  and  more  than 
marvellous  this  triumph  of  the  sciences  that  my  modest  rent- 
charge  stimulates  you  annually  to  record;  nor  do  I  wonder 
less  at  what  my  lecturers  have  said  of  humane  letters  and 
the  fine  arts,  of  the  history  of  all  times  and  of  my  time, 
of  Erasmus  whom  I  remember,  and  that  age  of  the  Renais- 
sance (as  you  caH  it)  in  which  (so  you  say)  I  lived.  But 
there  is  one  matter,  one  science  (for  such  we  accounted  it) 
of  which  they  seem  to  have  said  little  or  nothing;  and  it 
happens  to  be  a  matter,  a  science,  in  which  I  used  to  take 
some  interest  and  which  I  endeavoured  to  teach.  You  have 
not,  I  hope,  forgotten  that  I  was  not  only  an  English  judge, 
but,  what  is  more,  a  reader  in  English  law."  1 

Six  years  ago  a  great  master  of  history,  whose  untimely 
death  we  are  deploring,  worked  the  establishment  of  the  Rede 
lectures  into  the  picture  that  he  drew  for  us  of  The  Early 
Renaissance  in  England.2  He  brought  Rede's  name  into 
contact  with  the  names  of  Fisher  and  More.  That,  no  doubt, 
is  the  right  environment,  and  this  pious  founder's  care  for 
the  humanities,  for  logic  and  for  philosophy  natural  and 

1   The  Rede  Lecture  for  1901   (Cambridge:    University  Press). 

1  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  1,  ante, 
p.  7. 

1  Robert  Rede  was  Autumn  Reader  nt  Lincoln's  Inn  in  1481,  Lent 
Reader  in  1485:  Black  Book  of  Lincoln's  Inn,  vol.  i.,  pp.  71,  83. 

1  Creighton,  The  Early  Renaissance  in  England,  Camb.  1895. 

168 


6.     MA1TLAND:    THE    RENAISSANCE       169 

moral  was  a  memorable  sign  of  the  times.  Nevertheless  the 
fact  remains  that,  had  it  not  been  for  his  last  will  and  testa- 
ment, we  should  hardly  have  known  Sir  Robert  except  as 
an  English  lawyer  who  throve  so  well  in  his  profession  that 
he  became  Chief  Justice  of  the  Common  Bench.  And  the 
rest  of  the  acts  of  Robert  Rede  —  we  might  say  —  and  the 
arguments  that  he  urged  and  the  judgments  that  he  pro- 
nounced, are  they  not  written  in  queer  old  French  in  the  Year 
Books  of  Henry  VII  and  Henry  VIII?  Those  ancient  law 
reports  are  not  a  place  in  which  we  look  for  humanism  or 
the  spirit  of  the  Renaissance:  rather  we  look  there  for  an 
amazingly  continuous  persistence  and  development  of  medi- 
eval doctrine. 

Perhaps  we  should  hardly  believe  if  we  were  told  for  the 
first  time  that  in  the  reign  of  James  I  a  man  who  was  the 
contemporary  of  Shakespeare  and  Bacon,  a  very  able  man 
too  and  a  learned,  who  left  his  mark  deep  in  English  history, 
said,  not  by  way  of  paradox  but  in  sober  earnest,  said  re- 
peatedly and  advisedly,  that  a  certain  thoroughly  medieval 
book  written  in  decadent  colonial  French  was  "  the  most 
perfect  and  absolute  work  that  ever  was  written  in  any 
human  science."  3  Yet  this  was  what  Sir  Edward  Coke  said 
of  a  small  treatise  written  by  Sir  Thomas  Littleton,  who, 
though  he  did  not  die  until  1481,  was  assuredly  no  child  of 
the  Renaissance. 

I  know  that  the  names  of  Coke  and  Littleton  when  in 
conjunction  are  fearsome  names  or  tiresome,  and  in  common 
honesty  I  am  bound  to  say  that  if  you  stay  here  you  will 
be  wearied.  Still  I  feel  that  what  is  at  fault  is  not  my  theme. 
A  lecturer  worthy  of  that  theme  would  —  I  am  sure  of  it 
—  be  able  to  convince  you  that  there  is  some  human  interest, 
and  especially  an  interest  for  English-speaking  mankind, 
in  a  question  which  Coke's  words  suggest :  —  How  was  it  and 
why  was  it  that  in  an  age  when  old  creeds  of  many  kinds 
were  crumbling  and  all  knowledge  was  being  transfigured, 
in  an  age  which  had  revolted  against  its  predecessor  and  was 
fully  conscious  of  the  revolt,  one  body  of  doctrine  and  a 

8  Coke,  Introductory  Letter  to  Part  10  of  the  Reports,  and  Preface  to 
First  Institute. 


170     //.    FROM   THE   1100'S    TO    THE   1800'S 

body  that  concerns  us  all  remained  so  intact  that  Coke  could 
promulgate  this  prodigious  sentence  and  challenge  the  whole 
world  to  contradict  it?  4  I  have  not  the  power  to  tell  and  you 
to-day  have  not  the  time  to  hear  that  story  as  it  should  be 
told.  A  brief  outline  of  what  might  be  said  is  all  that  will 
be  possible  and  more  than  will  be  tolerable. 

Robert  Rede  died  in  January,  1519.  Let  us  remember 
for  a  moment  where  we  stand  at  that  date.  The  Emperor 
Maximilian  also  was  dying.  Henry  VIII  was  reigning  in 
England,  Francis  I  in  France,  Charles  I  in  Spain,  Leo  X 
at  Rome.  But  come  we  to  jurisprudence.  Is  it  beneath  the 
historic  muse  to  notice  that  young  Mr.  More,  the  judge's 
son,  had  lately  lectured  at  Lincoln's  Inn?5  Perhaps  so. 
At  all  events  for  a  while  we  will  speak  of  more  resonant 
exploits.  We  could  hardly  (so  I  learn  at  second-hand)  fix 
a  better  date  than  that  of  Rede's  death  for  the  second  new 
birth  of  Roman  law.  More's  friend  Erasmus  had  turned 
his  back  on  England  and  was  by  this  time  in  correspondence 
with  two  accomplished  jurists,  the  Italian  Andrea  Alciato 
and  the  German  Ulrich  Zasi.  They  and  the  French  scholar 
Guillaume  Bude  were  publishing  books  which  mark  the  begin- 
ning of  a  new  era.6  Humanism  was  renovating  Roman  law. 


*Sohm,  Frdnkisches  Recht  und  romisches  Recht,  1880,  p.  77:  "  .  .  . 
Thatsachen  in  Folge  deren  Renaissance  an  dem  englischen  Rechtsleben 
so  gut  wie  spurlos  voruberging." 

"Thomas  More  was  Autumn  Reader  in  1511,  Lent  Reader  in  1515: 
Black  Book  of  Lincoln's  Inn,  vol.  i.,  pp.  162,  175. 

*  Etienne  Pasquier,  Recherches  sur  la  France,  ix.  39  (cited  by  Dareste, 
/•; .-••."•"(  sur  Francois  Hotman,  Paris,  1850,  p.  17):  "  Le  siecle  de  1'an  mil 
cinq  cens  nous  apporta  une  nouvelle  estude  de  loix  qui  fut  de  faire  un 
mariage  de  1'estude  de  droict  avec  les  lettres  humaines  par  un  langage 
latin  net  et  poly:  et  trouve  trois  premiers  entrepreneurs  de  ce  nouveau 
mesnage,  Guillaume  Bud£,  Fran?ois,  enfant  de  Paris,  Andr6  Alciat, 
Italien  Milanois,  Udaric  Zaze,  Alleman  n6  en  la  ville  de  Constance." 
Savigny,  Geschichte  des  romischen  Rechts  im  Mittelalter,  ed.  2,  vol.  vi., 
p.  421 :  "  Nun  sind  es  zwei  Manner,  welche  als  Stifter  und  Fiihrer  der 
neuen  Schule  angesehen  werden  konnen:  Alciat  in  Italien  und  Frank- 
reich,  Zasius  in  Deutschland.  Die  ersten  Schriften,  worin  die  neue 
Methode  erscheint,  fallen  in  das  zweite  Decennium  des  fiinfzehnten 
[corr.  sechzehnten]  Jahrhunderts." 

Andrea  Alciato  was  born  at  Alzate  near  Milan  in  1492,  studied  at 
Pavia  and  Bologna,  in  1518  was  called  to  teach  at  Avignon,  went  to 
Milan  in  1520,  to  Bourges  in  1528,  was  afterwards  at  Pavia,  Bologna 
and  Ferrara,  died  at  Pavia  in  1550  (Pertile,  Storia  del  diritto  italiano, 
ed.  2,  vol.  ii.  (2),  p.  428).  Ulrich  Zasi  was  born  in  1461,  studied  at 
Tubingen  and  at  Freiburg  where  he  became  town-clerk  and  afterwards 


6.     MAITLAND:    THE    RENAISSANCE       171 

The  medieval  commentators,  the  Balduses  and  Bartoluses,  the 
people  whom  Hutten  and  Rabelais  7  could  deride,  were  in  like 
case  with  Peter  Lombard,  Duns  Scotus  and  other  men  of 
the  night.  Back  to  the  texts !  was  the  cry,  and  let  the  light 
of  literature  and  history  play  upon  them.8  The  great 
Frenchmen  who  were  to  do  the  main  part  of  the  work  and 
to  make  the  school  of  Bourges  illustrious  were  still  young  or 
unborn;  Cujas  was  born  in  1522;  but  already  the  advanced 
guard  was  on  the  march  and  the  flourish  of  trumpets  might 
be  heard.9  And  then  in  1520  —  well,  we  know  what  hap- 

professor  of  law,  died  in  1535.  See  Stintzing,  Ulrich  Zasius,  Basel, 
1857,  where  (pp.  162-216)  the  intercourse  between  Erasmus,  Zasi,  Al- 
ciato  and  Bude  is  described.  The  early  Italian  humanists  had  looked 
on  Jurisprudence  with  disdain  and  disgust.  See  Geiger,  Renaissance 
und  Humanismus,  1882,  pp.  500-503;  Voigt,  Die  Wiederbelebung  de» 
Classischen  Alterthums,  ed.  3,  vol.  ii.,  pp.  477-484.  Gradually,  so  I  under- 
stand, philologians  such  as  Bude  (d.  1540)  began  to  discover  that  there 
was  matter  interesting  to  them  in  the  Corpus  Juris,  and  a  few  jurists 
turned  towards  the  new  classical  learning.  See  Tilley,  Humanism  under 
Francis  I.,  in  English  Historical  Review,  vol.  xv.,  pp.  456  ff.  In  1520 
Zasi,  writing  to  Alciato,  said  "  All  sciences  have  put  off  their  dirty 
clothes:  only  jurisprudence  remains  in  her  rags."  (Stintzing,  Ulrich 
Zasius,  p.  107.) 

7  Rabelais,    Pantagruel,   liv.    ii.,   ch.   x. :     "  Sottes    et    desraisonnables 
raisons  et  inepts  opinions  de  Accurse,  Balde,  Bartole,  de  Castro,  de  Imola, 
Hippolytus,  Panorme,  Bertachin,  Alexander,  Curtius  et  ces  autres  vieux 
mastins,  qui  jamais  n'entendirent  la  moindre  loy  des  Pandectes,  et  n'es- 
•toient  que  gros  veaulx  de  disme,  ignorans  de  tout  ce  qu'est  necessaire  a 
1'intelligence  des  loix.    Car  (comme  il  est  tout  certain)  ilz  n'avoient  cog- 
noissance  de  langue  ny  grecque,  ny  latine,  mais  seulement  de  gothique  et 
barbare.  .  .  .  Davantage,  veu  que  les  loix  sont  extirpees  du  milieu  de 
philosophic  morale  et  naturelle,  comment  1'entendront  ces  folz,  qui  ont  par 
Dieu  moins  estudie  en  philosophic  que  ma  mulle.    Au  regard  des  lettres 
d'humanit^   et  cognoissance   des   antiquites  et  histoires   ilz  en  estoient 
charges  comme  un  crapaud  de  plumes,  et  en  usent  comme  un  crucifix 
d'un  pifre,  dont  toutesfois  les  droits  sont  tous  pleins,  et  sans  ce  ne  peu- 
vent  estre  entenduz."    W.  F.  Smith,  Rabelais,  vol.  i.,  p.  257,  translates  the 
last  sentence  thus :   "  With  regard  to  the  cultivated  literature  and  knowl- 
edge of  antiquities  and  history,  they  were  as  much  provided  with  those 
faculties  as  is  a  toad  with  feathers  and  have  as  much  use  for  them  as  a 
drunken  heretic  has  for  a  crucifix.  .  .  ." 

8  Stintzing,  Oeschichte  der  deutschen  Rechtswissenschaft,  vol.  i.,  p.  96: 
"  Man  wird  sich  bewusst,  dass  nicht  in  der  iiberlieferten  Schulweisheit 
das  Wesen  der  Wissenschaft  stecke;    dass  es  auch  hier  gelte,  dem  Rufe 
des  Humanismus  '  zuriick  zu  den  Quellen ! '  zu  folgen." 

•  The  greatest  names  appear  to  be  those  of  Francois  Duaren  or  more 
correctly  Le  Douarin  (1509-1559),  Jacques  Cujas  (1522-1590),  Hugues 
Doneau  (Donellus,  1527-1592),  Francois  Baudouin  (Balduinus,  1520- 
1573),  Francois  Hotman  (1524-1591),  Denis  Godefroy  (1549-1622), 
Jacques  Godefroy  (1587-1652).  Besides  these  there  is  Charles  Du 
Moulin  (Molinaeus,  1500-1566)  whose  chief  work,  however,  was  done 
upon  French  customary  law,  and  who  in  the  study  of  Roman  law  repre- 
sents a  conservative  tradition.  (Esmein,  Histoire  du  droit  franqais,  ed. 


172    //.     FROM    THE    HOO'S    TO    THE    1800'S 

pened  in  1520  at  Wittenberg,  but  perhaps  we  do  not  often 
remember  that  when  the  German  friar  ceremoniously  and 
contumeliously  committed  to  the  flames  some  venerated  law- 
books  —  this,  if  an  event  in  the  history  of  religion,  was  also 
an  event  in  the  history  of  jurisprudence.  A  current  of  new 
life  was  thrilling  through  one  Corpus  Juris ; 10  the  other 
had  been  sore  stricken,  and,  if  it  escaped  from  violent  death, 
might  perish  yet  more  miserably  of  a  disease  that  becomes 
dangerous  at  the  moment  when  it  is  discovered. 

A  few  years  afterwards  an  enlightened  young  humanist, 
of  high  rank  and  marked  ability,  a  man  who  might  live  to 
be  pope  of  Rome  or  might  live  to  be  king  of  England,  was 
saying  much  evil  of  the  sort  of  law  that  Rede  had  admin- 
istered and  taught ;  was  saying  that  a  wise  prince  would 
banish  this  barbaric  stuff  and  receive  in  its  stead  the  civil 
law  of  the  Romans.  Such,  so  we  learn  from  one  of  his 
friends,  was  the  talk  of  Heginald  Pole,  and  a  little  knowledge 
of  what  was  happening  in  foreign  countries  is  enough  to 
teach  us  that  such  talk  deserves  attention.11 

2,  p.  776.)  Dareste  (Essai  sur  Francois  Hotman,  p.  2)  marks  the  five 
years  1546-1551  as  those  in  which  "  nos  quatre  grands  docteurs  du 
seizieme  siecle"  (Hotman,  Baudouin,  Cujas,  Doneau)  entered  on  their 
careers. 

10  Viollet,  Droit  civil  franqals,  p.  25:  "  C'est  le  mouvement  scientiftque 
de  la  Renaissance  qui,  semblable  a  un  courant,  d'electricite,  donnc  ainsi 
au  vieux  droit  romain  une  vie  nouvelle.  Son  autorite  s'accroit  par 
1'action  d'une  science,  pleine  de  jeunesse  et  d'ardeur,  d'une  science  qui, 
comme  toutes  les  autres  branches  de  1'activite  humaine,  s'epanouit  et 
renait."  Flach,  in  Nouvelle  revue  historique  de  droit,  vol.  vii.,  p.  222: 
"  En  France  Cu j  as  porte  a  son  apogee  le  renom  de  1'ecole  nouvelle. 
Quelle  autre  preoccupation  cette  ecole  pouvait-elle  avoir  que  de  faire 
revivre  le  veritable  droit  de  la  Rome  ancienne,  celui  que  la  pratique  avait 
touch£  de  son  souffle  impur,  celui  qu'elle  avait  corrompu?  " 

uStarkey's  England,  Early  English  Text  Society,  1878,  pp.  192  ff.; 
and  see  Letters  and  Papers,  Henry  VIII.,  vol.  viii.,  pp.  81-84,  and  Ibid. 
vol.  xii.,  pt.  1,  pp.  xxxii-xxxiv.  Thomas  Starkey  was  employed  in  the 
endeavour  to  win  Reginald  Pole  to  King  Henry's  side  in  the  matter  of 
the  divorce  from  Catherine  and  the  consequent  "breach  with  Rome.  The 
negotiation  failed,  but  Starkey  took  the  opportunity  of  laying  before 
Henry  a  dialogue  which  he  (Starkey)  had  composed.  The  interlocutors 
In  this  dialogue  were  Pole  and  the  well-known  scholar  Thomas  Lupset, 
and  Pole  was  represented  as  expounding  his  opinions  touching  political 
and  ecclesiastical  affairs.  How  far  at  all  points  Starkey  fairly  repre- 
sented Pole's  views  may  be  doubted.  Still  we  have  respectable  evidence 
that  Pole  had  talked  in  the  strain  of  the  following  passage,  and  at  any 
rate  Starkey  thought  that  in  King  Henry's  eyes  he  was  befriending  Pole 
by  making  him  speak  thus. 

"Thys  ys  no  dowte  but  that  our  law  and  ordur  thereof  ys  over- 


6.     MAITLAND:    THE    RENAISSANCE        173 

This  was  the  time  when  Roman  law  was  driving  German 
law  out  of  Germany  or  forcing  it  to  conceal  itself  in  humble 
forms  and  obscure  corners.12  If  this  was  the  age  of  the 
Renaissance  and  the  age  of  the  Reformation,  it  was  also  the 
age  of  the  "  Reception."  I  need  not  say  that  the  Reception 

12  For  a  general  view  of  the  Reception  in  Germany  with  many  refer- 
ences to  other  books,  see  Schroder,  Deutsche  Rechtsgeschichte,  ed.  2, 
pp.  743  ff. ;  ed.  3,  pp.  767  ff. 

confuse.  Hyt  ys  infynyte,  and  without  ordur  or  end.  Ther  ys  no  stabyl 
grounde  therin,  nor  sure  stay;  but  euery  one  that  can  coloure  reson 
makyth  a  stope  to  the  best  law  that  ys  before  tyme  deuysyd.  The 
suttylty  of  one  sergeant  schal  enerte  [enerve?]  and  destroy  al  the 
jugementys  of  many  wyse  men  before  tyme  receyuyd.  There  is  no 
stabyl  ground  in  our  commyn  law  to  leyne  vnto.  The  jugementys  of 
yerys  [i.  e.  the  Year  Books]  be  infynyte  and  ful  of  much  controuersy; 
and,  besyde  that,  of  smal  authoryte.  The  jugys  are  not  bounden,  as  I 
vnderstond,  to  folow  them  as  a  rule,  but  aftur  theyr  owne  lyberty  they 
haue  authoryte  to  juge,  accordyng  as  they  are  instructyd  by  the  ser- 
geantys,  and  as  the  cyrcumstance  of  the  cause  doth  them  moue.  And 
thys  makyth  jugementys  and  processe  of  our  law  to  be  wythout  end  and 
infynyte;  thys  causyth  sutys  to  be  long  in  decysyon.  Therefor,  to 
remedy  thys  mater  groundly,  hyt  were  necessary,  in  our  law,  to  vse  the 
same  remedy  that  Justynyan  dyd  in  the  law  of  the  Romaynys,  to  bryng 
thys  infynyte  processe  to  certayn  endys,  to  cut  away  thys  long  lawys, 
and,  by  the  wysdome  of  some  polytyke  and  wyse  men,  instytute  a  few 
and  bettur  lawys  and  ordynancys.  The  statutys  of  kyngys,  also,  be  ouer- 
many,  euen  as  the  constytutyonys  of  the  emperorys  were.  Wherefor  I 
wold  wysch  that  al  thes  lawys  schold  be  brought  into  some  smal  nombur, 
and  to  be  wryten  also  in  our  mother  tong,  or  els  put  into  the  Latyn,  to 
cause  them  that  studye  the  cyuyle  law  of  our  reame  fyrst  to  begyn  of 
the  Latyn  tong,  wherin  they  myght  also  afturward  lerne  many  thyngys 
to  helpe  thys  professyon.  Thys  ys  one  thyng  necessary  to  the  educatyon 
of  the  nobylyte,  the  wych  only  I  wold  schold.be  admyttyd  to  the  study 
of  thys  law.  Then  they  myght  study  also  the  lawys  of  the  Romaynys, 
where  they  schold  see  al  causys  and  controuersys  decyded  by  rulys  more 
conuenyent  to  the  ordur  of  nature  then  they  be  in  thys  barbarouse  tong 
and  Old  French,  wych  now  seruyth  to  no  purpos  els.  Thys,  Mastur 
Lvpset,  ys  a  grete  blote  in  our  pollycy,  to  see  al  our  law  and  commyn 
dyscyplyne  wryten  in  thys  barbarouse  langage,  wych,  aftur  when  the 
youth  hath  lernyd,  seruyth  them  to  no  purpos  at  al;  and,  besyde  that, 
to  say  the  truth,  many  of  the  lawys  themselfys  be  also  barbarouse  and 
tyrannycal,  as  you  haue  before  hard.  [Here  follows  an  attack  on  primo- 
geniture and  entail.]  The  wych  al  bj*  thys  one  remedy  schold  be 
amendyd  and  correct,  yf  we  myght  induce  the  hedys  of  our  cuntrey  to 
admyt  the  same:  that  ys,  to  receyue  the  cyuyle  law  of  the  Romaynys, 
the  wych  ys  now  the  commyn  law  almost  of  al  Chrystyan  natyonys.  The 
wych  thyng  vndowtydly  schold  be  occasyon  of  infynyte  gudness  in  the 
ordur  of  our  reame,.  the  wych  I  coud  schow  you  manyfestely,  but  the 
thyng  hyt  selfe  ys  so  open  and  playn,  that  hyt  nedyth  no  declaratyon  at 
al :  for  who  ys  so  blynd  that  seth  not  the  grete  schame  to  our  natyon,  the 
grete  infamy  and  rote  that  remeynyth  in  vs,  to  be  gouernyd  by  the  lawys 
gyuen  to  vs  of  such  a  barbarouse"  natyon  as  the  Normannys  be?  Who 
ys  so  fer  from  rayson  that  consyderyth  not  the  tyranycal  and  barbarouse 
instytutionys,  infynyte  ways  left  here  among  vs,  whych  al  schold  be  wypt 


174    //.     FROM    THE    1100'S    TO    THE    1800'S 

—  the  reception  of  Roman  law  —  plays  a  large  part  in  mod- 
ern versions  of  German  history,  and  by  no  means  only  in 
such  as  are  written  by  lawyers.  I  need  not  say  that  it  has 
been  judged  from  many  different  points  of  view,  that  it  has 
been  connected  by  some  with  political,  by  others  with  relig- 

away  by  the  receyuyng  of  thys  wych  we  cal  the  veray  cyuyle  law; 
wych  ys  vndowtydly  the  most  auncyent  and  nobyl  monument  of  the 
Romaynys  prudence  and  pollycy,  the  wych  be  so  wryte  wyth  such 
grauyte,  that  yf  Nature  schold  herselfe  prescrybe  partycular  meanys 
wherby  mankynd  schold  obserue  hyr  lawys,  I  thynke  sche  wold  admyt 
the  same:  specyally,  yf  they  were,  by  a  lytyl  more  wysedome,  brought 
to  a  lytyl  bettur  ordur  and  frame,  wych  myght  be  sone  downe  and  put. 
in  effect.  And  so  ther  aftur  that,  yf  the  nobylyte  were  brought  vp  in 
thys  lawys  vndoubtydly  our  cuntrey  wold  sclK»rtly  be  restoryd  to  as  gud 
eyuylyte  as  there  ys  in  any  other  natyon;  ye,  and  peradventure  much 
bettur  also.  For  though  thes  lawys  wych  I  haue  so  praysyd  be  commyn 
among  them,  yet,  bycause  the  nobylyte  ther  commynly  dothe  not  exer- 
cyse  them  in  the  studys  thereof,  they  be  al  applyd  to  lucur  and  gayne, 
bycause  the  popular  men  wych  are  borne  in  pouerty  only  doth  exercyse 
them  for  the  most  parte,  wych  ys  a  grete  ruyne  of  al  gud  ordur  and 
cyuylyte.  Wherefor,  Master  Lvpste,  yf  we  myght  bryng  thys  ij.  thyngys 
to  effecte  —  that  ys  to  say,  to  haue  the  cyuyle  law  of  the  Romaynys  to 
be  the  commyn  law  here  of  Englond  with  vs;  and,  secondary,  that  the 
nobylyte  in  theyr  youth  schold  study  commynly  therin  —  I  thynk  we 
schold  not  nede  to  seke  partycular  remedys  for  such  mysordurys  as  we 
haue  notyd  before;  for  surely  thys  same  publyke  dyscyplyne  schold 
redresse  them  lyghtly;  ye,  and  many  other  mow,  the  wych  we  spake  not 
yet  of  at  al." 

Lupset  thereupon  objects  that,  seeing  we  have  so  many  years  been 
governed  by  our  own  law,  it  will  be  hard  to  bring  this  reform  to  pass. 
Pole  replies  that  the  goodness  of  a  prince  would  bring  it  to  pass 
quickly :  "  the  wych  I  pray  God  we  may  onys  see." 

The  Pole  of  the  Dialogue  wished  to  make  the  power  to  entail  lands  a 
privilege  of  the  nobility.  A  project  of  this  kind  had  been  in  the  air: 
perhaps  in  King  Henry's  mind.  See  Loiters  and  Papers,  Henry  VIII., 
vol.  iv.,  pt.  2,  p.  2693  (A.  D.  1529):  "Draft  bill  .  .  .  proposing  to 
enact  that  from  1  Jan.  next  all  entails  be  annulled  and  all  possessions 
be  held  in  fee  simple.  .  .  .  The  Act  is  not  to  affect  the  estates  of  noble- 
men within  the  degree  of  baron."  This  is  one  of  the  proposals  for 
restoring  the  king's  feudal  revenue  which  lead  up  to  the  Statute  of 
Uses:  an  Act  whose  embryonic  history  has  not  yet  been  written,  though 
Dr.  Stubbs  has  thrown  out  useful  hints.  (Seventeen  Lectures,  ed.  3, 
p.  321.) 

When  Pole  left  England  in  J532  he  went  to  Avignon  where  Alciato  had 
lately  been  lecturing  and  became  for  a  short  while  a  pupil  of  Giovanni 
Francesco  Ripa  (Zimmermann,  Kardinal  Pole,  1893,  p.  51),  who  was  both 
canonist  and  legist.  Whether  at  any  time  Pole  made  a  serious  study  of 
the  civil  law  T  do  not  know.  In  1534  Pole  and  Starkey  were  together 
at  Padua;  Pole  was  studying  theology,  Starkey  the  civil  law.  Starkey 
in  a  letter  says  "Francis  Curtius  is  dead,  to  the  grief  of  those  who 
follow  the  doctrine  of  Bartholus."  Perhaps  we  may  infer  from  this  that 
Starkey  was  in  the  camp  of  the  Anti-Bartolists  (Letters  and  Papers, 
Henry'  mi.,  vol.  vii.,  p.  331).  In  1535  he  says  that  he  has  been  study- 
ing the  civil  law  in  order  to  form  "a  better  judgment  of  the  politic 
order  and  customs  used  in  our  country"  (Ibid.  vol.  viii.,  p.  80). 


6.     MAITLAND:    THE    RENAISSANCE        175 

ious  and  by  yet  others  with  economic  changes.  Nor  need 
I  -say  that  of  late  years  few  writers  have  had  a  hearty  good 
word  for  the  Reception.  We  have  all  of  us  been  nationalists 
of  late.  Cosmopolitanism  can  afford  to  await  its  turn.13 

Then  we  observe  that  not  long  after  Pole  had  been  advo- 
cating a  Reception,  his  cousin  King  Henry,  whose  word  was 
law  supreme  in  church  and  state,  prohibited  the  academic 
study  of  one  great  and  ancient  body  of  law  —  the  canon 
law  14  —  and  encouraged  the  study  of  another  —  the  civil 

13  For  a  moderate  defence  of  the  Reception,  see  Windscheid,  Pandek- 
tenrecht,  ed.  7,  vol.  i.,  p.  23  ff.  (§10).  Ihering  appeals  from  Nation- 
ality to  Universality  (cosmopolitanism) ;  Geist  des  romischen  Rechts, 
ed.  5,  vol.  i.,  p.  12:  "So  lange  die  Wissenschaft  sich  nicht  entschliesst, 
dem  Gedanken  der  Nationalitat  den  der  Universalitat  als  gleichberech- 
tigten  zur  Seite  zu  setzen,  wird  sie  weder  im  Stande  sein  die  Welt,  in  der 
sie  selber  lebt,  zu  begreifen,  noch  auch  die  geschehene  Reception  -des 
romischen  Rechts  wissenschaftlich  zu  rechtfertigen."  The  following 
sentences  may,  I  believe,  be  taken  as  typical  of  much  that  has  been 
written  of  late  years.  Brunner,  Grundziige  der  deutschen  Rechtsge- 
schichte,  1901,  p.  231:  "  Allein  was  stets  Tadel  und  Vorwurf  hervorrufen 
wird,  ist  die  Art,  wie  die  Rezeption  .  .  .  durchgefiihrt  wurde.  Ein 
nationales  Ungliick  war  jenes  engherzige  Ignorieren  des  deutschen 
Rechts,  jenes  geistlose  und  rein  ausserliche  Aufpfropfen  romischer 
Rechtssatze  auf  einheimische  Verhaltnisse,  die  Unkenntnis  des  Gegen- 
satzes  zwischen  diesen  und  dem  romischen  Rechte,  welche  taub  machte 
gegen  die  Wahrheit,  dass  kein  Volk  rait  der  Seele  eines  anderen  zu 
denken  vermag." 

"Injunctions  of  1535,  Stat.  Acad.  Cantab,  p.  134:  "  Quare  volumus 
ut  deinceps  nulla  legatur  palam  et  publice  lectio  per  academiam  vestram 
totam  in  iure  canonico  sive  pontificio  nee  aliquis  cuiuscunque  conditionis 
homo  gradum  aliquem  in  studio  illius  iuris  pontificii  suscipiat  aut  in 
eodem  inposterum  promoveatur  quovis  modo."  See  Mullinger,  Hist. 
Univ.  Camb.  vol.  i.,  p.  630;  Cooper,  Annals  of  Cambridge  vol.  i.,  p.  375; 
and  for  Oxford,  Ellis,  Original  Letters,  Ser.  II.,  vol.  ii.,  p.  60.  In 
September  1535  Legh  and  Ap  Ryce  declare  that  the  canon  laws  are 
"  profligate  out  of  this  realm."  (Letters  and  Papers,  Henry  VIII.,  vol. 
ix.,  p.  138.) 

Despite  a  doubt  suggested  by  Stubbs  (Seventeen  Lectures,  ed.  3,  p. 
368),  I  cannot  believe  that  the  slightest  hint  of  a  degree  in  canon  law 
lurks  at  Cambridge  in  the  title  "  Legum  Doctor"  (LL.  D.) :  not  even 
"a  shadowy  presentment  of  the  double  honour."  See  E.  C.  Clark, 
Cambridge  Legal  Studies,  1888,  pp.  56  ff.,  where  that  title  is  well 
explained.  On  the  continent  a  settled  usage  contrasted  the  doctores 
legum  and  the  doctores  decretorum.  See  e.  g.  Stintzing,  Geschichte  der 
deutschen  Rechtswissenschaft,  vol.  i.,  p.  25:  "In  Italien  hatten  die 
Legisten  und  Decretisten  verschiedene  Schulen  gebildet.  In  Deutschland 
waren  sie  zwar  zu  einer  Facultat  vereinigt,  bildeten  jedoch  lange  Zeit  zwei 
getrennte  Abtheilungen,  von  denen  jede  ihre  eigenen  akademischen  Grade 
ertheilte.  Neben  einander  erscheinen  die  Doctores  Legum  und  Doctores 
Decretorum,  bis  seit  dem  Anfang  des  16.  Jahrhunderts  diese  Scheidung 
schwindet  und  die  Doctores  utriusque  iuris  immer  haufiger  und  endlich 
zur  Regel  werden." 


176    //•     FROM    THE    1100'S    TO    THE    1800'S 

Jaw  —  by  the  foundation  of .  prof essorships  at  Oxford  and 
Cambridge.  We  observe  also  that  his  choice  of  a  man^to  fill 
the  chair  at  Cambridge  fell  on  one  who  was  eminently  qual- 
ified to  represent  in  his  own  person  that  triad  of  the  three 
R's  —  Renaissance,  Reformation  and  Reception.  We  know 
Professor  Thomas  Smith  as  a  humanist,  an  elegant  scholar 
with  advanced  opinions  about  the  pronunciation  of  Greek. 
We  know  the  Reverend  Thomas  Smith  as  a  decided,  if  cau- 
tious, protestant  whose  doings  are  of  some  interest  to  those 
who  study  the  changeful  history  of  ecclesiastical  affairs. 
Then  we  know  Dr.  Thomas  Smith  as  a  doctor  in  law  of  the 
university  of  Padua,  for  with  praise .vorthy  zeal  when  he  was 
appointed  professor  at  Cambridge  he  journeyed  to  the  foun- 
tain-head for  his  Roman  law  and  his  legal  degree.15  Also 
he'  visited  those  French  universities  whence  a  new  jurispru- 
dence was  beginning  to  spread.  He  returned  to  speak  to 
us  in  two  inaugural  lectures  of  this  new  jurisprudence:  to 
speak  with  enthusiasm  of  Alciatus  and  Zasius : 16  to  speak 
hopefully  of  the  future  that  lay  before  this  conquering  sci- 
ence —  the  future  that  lay  before  it  in  an  England  fortu- 
nately ruled  by  a  pious,  wise,  learned  and  munificent  Prince. 
Then  in  Edward  VI's  day  Thomas  Smith  as  a  Master  of  Re- 
quests was  doing  justice  in  a  court  whose  procedure  was  de- 
scribed as  being  "  altogether  according  to  the  process  of  sum- 
mary causes  in  the  civil  law  "  and  at  that  moment  this  Court 
of  Requests  and  other  courts  with  a  like  procedure  seemed  to 
have  time,  reason  and  popularity  upon  their  side.17  Alto- 

u  See  Mr.  Pollard's  life  of  Smith  in  Diet.  Nat.  Biog.  Some  important 
facts,  especially  about  his  ordination,  were  revealed  by  J.  G.  Nichols,  in 
Archaeologia,  xxxviii.  98-127. 

"Smith  says  that  when  he  first  became  a  member  of  the  senate  at 
Cambridge  he  bought  the  Digest  and  Code  and  certain  works  of  Alciatus, 
Zasius  and  Ferrarius.  (See  Mullinger,  History  of  the  University  of 
Cambridge,  vol.  ii.,  p.  130.)  Ferrarius  is,  I  suppose,  Arnaud  Ferrier,  the 
master  of  Cujas.  Mr.  Mullinger  (p.  126)  suggests  that  the  Spaniard 
Ludovico  Vives  while  resident  at  Oxford  may  have  propagated  dissat- 
isfaction with  the  traditional  teaching  of  Roman  law. 

"Select  Cases  in  the  Court  of  Requests  (Selden  Society),  1898,  p. 
cxxiii.  Mr.  Leadam's  introduction  to  this  volume  contains  a  great  deal 
of  new  and  valuable  matter  concerning  this  important  court.  The  title 
of  the  "  masters  of  requests "  seems  certainly  to  come  hither  from 
France.  Just  at  this  time  there  was  a  good  deal  of  borrowing  in  these 
matters:  witness  the  title  of  the  "secretaries  of  state,"  which,  it  is  said, 
spreads  outwards  from  Spain  to  make  the  tour  of  the  world. 


6.     M  AIT  LAND:    THE    RENAISSANCE       177 

gether,  the  Rev.  Prof.  Dr.  Sir  Thomas  Smith,  Knt.,  M.  P., 
Dean  of  Carlisle,  Provost  of  Eton,  Ambassador  to  the  Court 
of  France  and  Secretary  of  State  to  Queen  Elizabeth  was  a 
man  of  mark  in  an  age  of  great  events.  Had  some  of  those 
events  been  other  than  they  were,  we  might  now  be  saying 
of  him  that  he  played  a  prominent  part  in  Renaissance,  Ref- 
ormation and  Reception,  and  a  part  characteristic  of  that 
liberal  and  rational  university  of  which  he  was  professor, 
public  orator  and  vice-chancellor.18 

Some  German  historians,  as  you  are  aware,  have  tried 

18  Of  Smith's  two  orations  there  is  a  copy  in  Camb.  Univ.  Libr.  Baker 
MSS.  xxxvii.  294,'  414.  Mr.  Mullinger  (Hist.  Univ.  Cambr.,  vol.  ii.,  p. 
127)  has  given  an  excellent  summary.  The  following  passage  is  that 
in  which  the  Professor  approaches  the  question  whether  in  England  there 
is  a  career  open  to  the  civilian.  He  has  been  saying  that  we  ought  not 
to  study  merely  for  the  sake  of  riches.  "  Tamen  si  qui  sint  qui  hoc 
requirant,  sunt  archiva  Londini,  sunt  pontificia  fora,  forum  est  praefecti 
quoque  classis,  in  quibus  proclamare  licet  et  vocem  vendere;  est  scrip- 
tura;  singuli  pontifices  cancellarios  suos  habent  et  officiates  et  com- 
missarios,  qui  propter  civilis  et  pontificii  iuris  professionem  in  hunc 
locum  accipiuntur."  The  orator  proceeds  to  ask  whether  there  is  any 
youth  who  ungratefully  thinks  that  proficiency  in  legal  science  will  not 
find  an  adequate  reward.  "  In  quo  regno  aut  in  cuius  regis  imperio  tarn 
stulta  ilium  opinio  tenebit?  In  hoccine  nobilissimi  atque  invictissimi 
nostri  principis  Henrici  octavi  regno,  cuius  magnificentia  in  bonas 
literas,  studiumque  in  literatos,  omnium  omnis  memoriae  principum 
facta  meritaque  superavit,  cuius  ingentia  in  academias  beneficia,  licet 
nulla  unquam  tacebit  posteritas,  tamen  omni  celebratione  mariora 
reperientur.  Cum  strenue  laboraveris  et  periculum  ingenii  tui  feceris, 
teque  non  lusisse  operam  sed  dignum  aliquo  operae  precio  et  honore 
ostenderis,  cur  dejices  animum?  Cur  desperatione  conflictabis?  Cur  de 
tanto  fautore  ingeniorum,  tarn  insigni  bonae  indolis  exploratore,  tarn 
potenti  Rege,  tarn  munifico,  tarn  liberali  et  egregio  amatore  suorum 
demisse  viliterque  sentias  ?  " 

There  follows  much  more  flattery  of  the  king  as  a  patron  of  learning 
of  every  kind.  "  Iuris  quidem  civilis  consulti  facultas  in  hac  republica 
cum  ad  multos  usus  pernecessaria  est,  turn  a  principe  nostro  nequaquam 
negligi  aut  levem  haberi,  vel  hoc  argumento  esse  potest,  quod  tarn  amplo 
planeque  regio  stipendio  et  meam  hie  apud  vos  mediocritatem .  et  alium 
Oxonii  disertum  ac  doctum  virum  ius  hoc  civile  praelegere  profiterique 
voluit."  And  the  study  of  the  civil  law  is  the  high  road  to  diplomatic 
service.  "  Ius  vero  civile  sic  est  commune  ut  cum  ex  Anglia  discesseris, 
nobiles,  ignobiles,  docti,  indocti,  sacerdotes  etiam  ac  monachi  cum  aliquod 
specimen  eruditionis  videri  volunt  exhibuisse,  nihil  fere  aliud  perstrepunt 
quam  quod  ex  hoc  iure  civili  et  pontificio  sit  depromptum."  The  king 
has  wisely  employed  civilians  in  his  many  legations.  There  follow  com- 
pliments paid  to  Stephen  Gardiner,  Thomas  Thirlby,  William  Paget, 
Thomas  Wriothesley,  and  Thomas  Legh.  On  the  whole,  the  professor 
can  hold  out  to  his  pupils  the  prospect  of  diplomatic  employment,  of 
masterships  in  the  chancery  ("sunt  archiva  Londini"),  of  practice  in 
the  ecclesiastical  courts  and  the  court  of  admiralty,  and  besides  this 
they  are  to  remember  that  the  king  is  a  great  patron  of  learning.  I  do 


178    //.     FROM    THE    1100'S    TO    THE   1800'S 

to  find  or  to  fashion  links  that  will  in  some  direct  and  obvi- 
ous manner  connect  the  Reformation  and  the  Reception.  In 
one  popular  version  of  the  tale  protestantism  finds  a  congenial 
ally  in  the  individualism  and  capitalism  of  the  pagan  Digest.19 
In  truth  I  take  it  that  the  story  is  complex.  Many  currents 
and  cross-currents  were  flowing  in  that  turbid  age.  It  so 
happens  that  in  this  country  we  can  connect  with  the  heresi- 
archal  name  of  Wyclif  a  proposal  for  the  introduction  of 
English  law,  as  a  substitute  for  Roman  law,  into  the  schools 
of  Oxford  and  Cambridge.20  On  the  other  hand,  the  desire 

not  see  any  hint  that  knowledge  of  Roman  law  will  help  a  man  at  the 
bar  of  the  ordinary  English  courts. 

For  more  of  the  attempt  to  put  new  life  into  the  study  of  Roman  law 
at  Cambridge,  see  Mullinger,  op.  cit.,  vol.  ii.,  pp.  132  ff.  Though 
Somerset  desired  to  see  a  great  civil  law  college  which  should  be  a 
nursery  for  diplomatists,  the  Edwardian  or  Protestant  Reformation  of 
the  church  was  in  one  way  very  unfavourable  to  the  study  of  the  civil 
law.  Bishoprics  and  deaneries  were  thenceforth  reserved  for  divines, 
and  thus  what  had  been  the  prizes  of  his  profession  were  placed  beyond 
the  jurist's  reach.  Dr.  Nicholas  Wotton  (d.  1567),  dean  of  Canterbury 
and  York,  may  be  regarded  as  one  of  the  last  specimens  of  an  expiring 
race.  Men  who  were  not  professionally  learned,  men  like  Sir  Francis 
Bryan  (d.  1550)  and  Sir  Thomas  Wyatt  (d.  1542),  had  begun  to  compete 
with  the  doctors  for  diplomatic  missions  and  appointments.  Also  the 
chancellorship  of  the  realm  had  come  within  the  ambition  of  the  common 
lawyer,  and  (though  Bishop  Goodrich  may  be  one  instance  to  the  con- 
trary) the  policy  which  would  commit  the  great  seal  to  the  hands  of  a 
prelate  was  the  policy  which  would  resist  or  reverse  ecclesiastical  innova- 
tions. Even  the  mastership  of  the  rolls,  which  had  been  held  by  doctors, 
of  Padua  and  Bologna,  fell  to  the  common  lawyers.  Thomas  Hannibal, 
master  of  the  rolls  (1523-1527),  must,  one  would  think,  have  been  an 
Italian,  as  were  the  king's  Latin  secretaries  Andrea  Ammonio  and  Pietro 
Vannes. 

"See  Janssen,  Geschichte  des  deutschen  Volkes,  vol.  i.,  pp.  471-501, 
where  the  cry  of  "  heathenry !  "  is  raised  against  the  civil  law.  Janssen's 
attempt  to  praise  the  canon  law  as  radically  Germanic  while  blaming  the 
"  absolutistic "  tendencies  of  the  civil  law  seems  strange.  Was  not  the 
canon  law,  with  its  pope,  qui  omnia  iura  habet  in  scrinio  pectoris  sui, 
absolutistic  enough? 

"Wyclif,  Tractatus  de  officio  regis,  Wyclif  Society,  1887,  pp.  56, 
193,  237,  250:  "Leges  regni  Anglic  excellunt  leges  imperiales  cum  sint 
pauce  respectu  earum,  quia  supra  pauca  principia  relinquunt  residuum 
epikerie  [  =  'eirielKeia]  sapientum.  .  .  .  Non  credo  quod  plus  viget  in 
Romana  civilitate  subtilitas  racionis  sive  iusticia  quam  in  civilitate 
Anglicana.  .  .  .  Non  pocius  est  homo  clericus  sive  philosophus  in  quan- 
tum est  doctor  civilitatis  Romane  quam  in  quantum  est  iusticiarius 
iuris  Anglican!.  .  .  .  Unde  videtur  quod  si  rex  Anglic  non  permitteret 
canonistas  vel  civilistas  ad  hoc  sustentari  de  suis  elemosinis  vel  patri- 
monio  crucifixi  ut  studeant  tales  leges  .  .  .  non  dubium  quin  clerus 
foret  utilior  sibi  et  ad  ecclesiasticam  promocionem  humilior  ex  noticia 
civilitatis  proprie  quam  ex  noticia  civilitatis  duplicis  aliene."  By  "  the 
patrimony  of  the  crucified  "  Wyclif  means  ecclesiastical  revenues,  which 


6.     MA1TLAND:    THE    RENAISSANCE        179 

for  a  practical  Reception  of  the  civil  law  is  ascribed  to  the 
future  cardinal,  who  in  his  last  days  reconciled  England 
for  a  moment,  not  with  the  Rome  of  the  Digest,  but  with  the 
Rome  of  the  Decretals.  And  by  the  way  we  may  notice  that 
when  the  cardinal  was  here  upon  his  reconciliatory  errand 
he  had  for  a  while  as  his  legal  adviser  one  of  the  most  learned 
lawyers  of.  that  age,  the  Spaniard  Antonio  Agustin.  But 
we  in  England  take  little  notice  of  this  famous  man,  who, 
so  foreigners  assure  us  now-a-days,  began  the  historical  study 
of  the  canon  law  and  knew  more  about  the  false  Isidore  than 
it  was  comfortable  for  him  to  know.1  Our  Dr.  Smith  was 

some  of  the  bishops  have  been  using  in  the  endowment  of  legal  studies 
at  the  universities:  e.  g.  Bishop  Bateman  at  Cambridge. 

Wyclif,  Select  English  Works,  ed.  Arnold,  vol.  iii.,  p.  326:  "It  were 
more  profit  bobe  to  body  and  soule  bat  oufe  curatis  lerneden  and 
tau3ten  many  of  be  kyngis  statutis,  ban  lawe  of  )>e  emperour.  For 
oure  peple  is  bounden  to  be  kyngis  statutis  and  not  to  }>e  emperours 
lawe,  but  in  as  moche  as  it  is  enclosid  in  Goddis  hestis.  panne  moche 
tresour  and  moch  tyme  of  many  hundrid  clerkis  in  unyversite  and  obhere 
placis  is  foule  wastid  aboute  bookis  of  be  emperours  lawe  and  studie 
about  hem.  ...  It  seme))  bat  curatis  schulden  rabere  lerne  and  teche 
be  kyngis  statutis,  and  namely  be  Crete  Chartre,  ban  be  emperours  lawe 
or  myche  part  of  the  popis.  For  men  in  oure  rewme  ben  bounden  to 
obeche  to  be  kyng  and  his  rijtful  lawes  and  not  so  to  be  emperours; 
and  bei  my^tten  wonder  wel  be  savyd,  bou3  many  lawes  of  be  pope 
had  nevere  be  spoken,  in  bis  world  ne  be  tobere." 

Wyclif,  Unprinted  English  Works,  Early  English  Text  Society,  1880, 
p.  157:  "  pe  tyue  and  twentibe  errour:  Jjei  chesen  newe  lawis  maad  of 
synful  men  and  worldly  and  couetyse  prestis  and  clerkis  .  .  .  for  now 
hebenne  mennus  lawis  and  world  clerkis  statutis  ben  red  in  vnyuersi- 
tees,  and  curatis  lernen  hem  faste  wib  grete  desire,  studie  and  cost  .  .  . 
Ibid.  p.  184:  .  .  .  lawieris  maken  process  bi  sotilte  and  cauyllacions  of 
lawe  cyule,  bat  is  moche  he  ene  mennus  lawe,  and  not  accepten  the 
forme  of  be  gospel,  as  3if  be  gospel  were  no  so  good  as  paynymes  lawe." 
It  is  interesting  to  see  Janssen's  denunciation  of  Roman  law  as  Pagan 
thus  forestalled  by  the  great  heretic,  in  whose  eyes  the  Decretals  were 
but  little,  if  at  all,  better  than  the  Digest. 

,  *  For  Antonio  Agustin  (born  1517,  bishop  of  Alife  1556,  bishop  of 
Lerida  1561,  archbishop  of  Tarragona  1576,  died  1586)  see  Schulte, 
Oeschichte  der  Quellen  und  Literatur  des  canonischen  Rechts,  vol.  iii., 
p.  723;  Maasen,  Oeschichte  der  Quellen  des  canonischen  Rechts,  vol.  i., 
pp.  xix  ff.  His  stay  in  England  is  attested  in  the  Venetian  Calendars, 
1555-6,  pp.  20,  24,  32,  34,  56,  166.  See  also  Ibid.,  1556-7,  p.  1335.  See 
also  the  funeral  oration  by  And.  Schott  suffixed  to  Ant.  Augustini  De 
emendatione  Gratianv  dialogorum  libri  duo,  Par.  1607,  p.  320:  "  lulius 
tertius  P.  M.  .  .  .  adeo  Antonium  dilexit  ut  et  intimis  consiliis  adhi- 
buerit,  legatumque  summa  cum  auctoritate  in  Britanniam  insulam  opibus 
florentissimam  miserit,  cum  Rex  vere  Catholicus  Philippus  secundus 
Mariam  reginam,  Catholicorum  regum  Ferdinandi  et  Isabellae  neptem, 
duxit  uxorem.  .  .  .  Anno  1555  revertit  ex  Anglia  Romam  Augustinus." 
Apparently  he  was  sent,  not  merely  in  order  that  he  might  congratulate 
Philip  and  Mary,  but  also  that  "  tanquam  iurisconsultus  legato  adesset " 


180     //•     FROM    THE    1100'S    TO    THE    1800'S 

protestant  enough ;  but  his  Oxford  colleague  Dr.  John  Story 
showed  zeal  in  the  cremation  of  protestants,  helped  Alva 
(so  it  is  said)  to  establish  the  Inquisition  in  the  Netherlands, 
was  hanged  as  a  traitor  at  Tyburn  in  1571  and  beatified  as 
a  martyr  at  Rome  in  1886.  Blessed  John  Story  was  zealous ; 
but  his  permanent  contribution  to  the  jurisprudence  of  his 
native  land  was  (so  far  as  I  am  aware)  an  early  precedent 
for  the  imprisonment  of  a  disorderly  member  by  the  House 
of  Commons,  and  a  man  may  be  disorderly  without  being  a 
jurist.22  Ulrich  Zasi  went  part  of  the  way  with  Luther;  but 
then  stayed  behind  with  Erasmus.23  He  had  once  compared 
the  work  that  he  was  doing  for  the  Corpus  Juris  with  the 
work  that  Luther  was  doing  for  the  Bible.24  The  great 
Frenchmen  answered*  the  religious  question  in  different  ways. 
One  said  "  That  has  nothing  to  do  with  the  praetor's  edict." 
His  rivals  charged  him  with  a  triple  apostasy.25  Three  or 

(Schulte,  op.  cit.,  p.  724).  He  is  charged  by  modern  historians  with  not 
having  spoken  plainly  all  that  he  knew  about  the  origin  of  the  Pseudo- 
Isidorian  decretals.  England  may  have  contributed  a  little  towards  the 
explosion  of  the  great  forgery  by  means  of  books  that  were  lent  to  the 
Magdeburg  Centuriators  by  Queen  Elizabeth  and  Abp.  Parker.  See 
Foreign  Calendar,  1561-2,  pp.  117-9. 

22  See  Mr.  Pollard's  life  of  Story  in  Diet.  Nat.  Biog.  See  also  Dyer's 
Reports,  f.  300.  On  his  arraignment  for  high  treason  Story  ineffectually 
pleaded  that  he  had  become  a  subject  of  the  king  of  Spain. 

"See  Stintzing,  UJrick  Zasius,  pp.  216  ff. 

14  Ranke,  History  of  the  Reformation  in  Germany  (transl.  Austin), 
vol.  ii.,  pp.  97-8. 

28  The  Nihil  hoc  ad  edictum  praetoris!  is  currently  ascribed  to  Cujas, 
but  the  ultimate  authority  for  the  story  I  do  not  know.  See  Brissaud, 
Histoire  du  droit  franqais,  p.  355:  "La  science  la'ique  ddclarait  par  la 
bouche  d'un  de  ses  plus  grands  repr£sentants  qu'elle  n'£tait  plus  Phumble 
servante  de  la  theologie;  elle  affirmait  sa  secularisation."  It  seems  that 
Cujas  ("  wie  beinahe  alle  Rechtsgelehrten  seiner  Zeit").at  first  sided 
with  the  Reformers,  but  that  he  afterwards,  at  least  outwardly,  made 
his  peace  with  the  Catholic  church  (Spangenberg,  Jacob  Cujas  und  seine 
Zeitgenossen,  Leipz.  1822,  p.  162;  Haag,  La  France  protestante,  ed.  2, 
vol.  iv.,  col.  957-970).  Doneau  was  a  Calvinist;  driven  from  France  by 
Catholics  and  from  Heidelberg  by  Lutherans,  he  went  to  Leyden  and 
ultimately  to  Altdorf.  Hotman  was  a  Calvinist,  intimately  connected 
with  the  church  of  Geneva.  Baudouin  was  compelled  to  leave  France 
for  Geneva,  whence  he  went  to  Strassburg  and  Heidelberg;  but  he  quar- 
relled with  Calvin  and  was  accused  of  changing  his  religion  six  times. 
Charles  Du  Moulin  also  had  been  an  exile  at  Tubingen.  It  is  said  that 
after  a  Calvinistic  stage  he  became  a  Lutheran;  on  his  death-bed  he 
returned  to  Catholicism:  such  at  least  was  the  tale  told  by  Catholics. 
(See  Brodeau,  Le  vie  de  Maistre  Charles  Du  Molin,  Paris,  1*654;  Haag, 
La  France  protettante,  ed.  2,  vol.  v.,  col.  783-789.)  To  say  the  least, 
he  hdU  been  "  ultra-gallican."  (Schulte,  Geschichte  der  Quell  en  det 


6.     M  AIT  LAND:    THE    RENAISSANCE       181 

four  of  them  were  stout  huguenots,  and  we  must  not  forget 
that  Calvin  and  Beza  had  both  been  at  Bourges  and  had  both 
studied  the  civil  law.  Melanchthon  also  was  a  warm  admirer 
of  Roman  jurisprudence.28  It  is  reported  that  Elizabeth 
invited  Francis  Hotman  to  Oxford.27  He  was  protestant 
enough,  and  fierce  enough  to  exchange  letters  with  a  tiger.28 

canonischen  Rechts,  vol.  iv.,  p.  251.)  Of  Le  Douarin  also  it  is  said  "  il 
6tait  reformd  de  coeur"  (La  France  protestante,  ed.  2,  vol.  v.,  col.  508). 
"  Die  grosse  Mehrzahl  der  hervorrogenden  Juristen  bekannte  sich  mit 
grosserer  oder  geringerer  Entschiedenheit  zur  Partei  der  Hugenotten " 
(Stintzing,  Oeschichte  der  deutschen  Rechtswissenschaft,  vol.  i.,  p.  372). 
28  Stintzing,  Gesctiichte  der  deutschen  Rechtswissenschaft,  vol.  i.,  p. 
284. 

27  Elizabeth's  invitation  to  Hotman  is  mentioned  in  the  Elogium  of 
him  prefixed  to  his  Opera  (1599),  p.  viii,  and  in  Dareste's  essay  (p.  5). 
His  son  John  spent  some  time  at  Oxford.    In  1583  John  tells  his  father 
that  at  Oxford   he  has   plenty  of  time   for   study   "  quamvis   hie  miris 
modis  frigeat  iuris  civilis  studium  et  mea  hac  in  re  opera  nemini  grata 
possit  es*se  in  Anglia"  (Hotomanorum  Epistolae,  Amstd.,  1620,  p.  325). 
In  1584  John  was  consulted  along  with  Alberigo  Gentili  by  the  English 
government  in  the  Mendoza  case   (Holland,  Albericus  Oentilis,  pp.  14, 
15).    There  is  nothing  improbable  in  the  story  that  Francis  was  offered 
a  post  at  Oxford.     He  must  have  been  well  known  to  Cecil.     In  1562 
he  was  active  in  bringing  Conde  into  touch  with  Elizabeth  and  so  in 
promoting  the  expedition   to   Havre.     Conde's   envoy  brought   to   Cecil 
a  letter  of  introduction  from  Hotman  (Foreign  Calendar,  1561-2,  p.  601). 
Baudouin  also  at  this  time  was  making  himself  useful  to  the  English 
government.      (See  e.g.  Foreign  Calendar,  1558-9,  p.   173;   1561-2,  pp. 
60,  367,  454,  481,  510.)     It  has  been  said  that  Queen  Elizabeth  spoke  of 
Charles   Du    Moulin    as   her  kinsman    (Brodeau,  Vie    de    C.  Du  Molin, 
p.  4).    Whether  in  the  pedigree  of  the  Boleyns  there  is  any  ground  for 
this  story  I  do  not  know.    See  La  France  protestante,  ed.  2,  vol.  v.,  col. 
783.     Sir  Thomas  Craig,  who  is  an  important  figure  in  the  history  of 
Scotch  law,  sat  at  the  feet  of  Baudouin,  and  Edward  Henryson,  who 
in  1566  became  a  lord  of  session,  had  been  a  professor  at  Bourges  (Diet. 
Nat.  Biog.). 

28  The  Epistre   adressee   au   tygre   de   la  France,  a  violent  invective 
against  the  Cardinal  of  Lorraine,  still   finds    admirers    among   students 
of  French  prose.     Apparently  Hotman  would  have  been  the  last  man 
to  preach  a  Reception  of  Roman  law  in  England.     Being  keenly  alive 
to  the  faults  of  Justinian's  books,  he  resisted  the  further  romanization 
of  French  law,  demanded  a  national  code,  admired  the  English  limited 
monarchy,   and  by  his   Franco-Gallia  made  himself  in   some  sort  the 
ancestor  of  the  " Germanists."    Some  of  these  "elegant"  French  jurists 
were  so  much  imbued  with  the  historical  spirit  that  in  their  hands  the 
study  of  Roman  law  became  the  study  of  an  ancient  history.    The  fol- 
lowing words  cited  and  translated  by  Dareste  from  Baudouin   (Fran- 
qois  Hotman,  p.  19)  have  a  wonderfully  modern  sound:    "  Ceux  qui  ont 
etudie  le  droit  auraient  pu  trouver  dans  1'histoire  la  solution  de  bien 
des  difficult^,  et  ceux  qui  ont  6crit  1'histoire  auraient  mieux  fait  d'etu- 
dier  le  developpement  des  lois  et  des  institutions,  que  de  s'attacher  & 
passer  en  revue  les  armies,  a  decrire  les  camps,  a  raconter  les  batailles, 
a   compter    les    morts."      "  Sine    historia    caecam    esse    iurisprudentiam, 
disait  Baudouin"  (Brissaud,  Histoire  du  droit  franqais,  p.  349). 


182     //.     FROM    THE    1100'S    TO    THE    1800'S 

He  is  best  known  to  English  law-students  as  the  man  who 
spoke  light  words  of  Littleton  and  thus  attracted  Coke's 
thunderbolt;29  but  if  he  thought  badly  of  Littleton,  he 
thought  badly  of  Tribonian  also,  and  would  have  been  the 
last  man  to  preach  a  Reception.  Professor  Alberigo  Gentili 
of  Oxford,  he  too  was  protestant  enough  and  could  rail  at 
the  canonists  by  the  hour ;  but  then  he  as  an  Italian  had  a 
bitter  feud  with  the  French  humanizers,  and  stood  up  for 
the  medieval  gloss.80 

Plainly  the  story  is  not  simple  and  we  must  hurry  past 
it.  Still  the  perplexity  of  detail  should  not  obscure  the  broad 
truth  that  there  was  pleasant  reading  in  the  Byzantine  Code 

"  Coke,  Introductory  Letter  to  Part  10  of  the  Reports,  and  Preface 
to  Coke  upon  Littleton  (First  Institute).  The  words  of  Hotman  which 
moved  Coke  to  wrath  will  be  found  in  De  verbis  feudal  ibus  commen- 
tarius  (F.  Hotmani  Opera,  ed.  1599,  vol.  ii.,  p.  913)  s.  v.  feodum.  Hot- 
man remarks  that  the  English  use  the  word  fee  (longissime  tamen  a 
Langobardici  iuris  ratione  et  instituto)  to  signify  "praedia  omnia  quae 
perpetuo  iure  tenentur."  He  then  adds  that  Stephanus  Pasquerius  (the 
famous  fitienne  Pasquier)  had  given  him  Littleton's  book:  "ita  incon- 
dite, absurde  et  inconcinne  scriptum,  ut  facile  appareat  verissimum 
esse  quod  Polydorus  Virgilius  in  Anglica  Historia  de  iure  Anglicano 
testatus  est,  stultitiam  in  eo  libro  cum  malitia  et  calumniandi  studio 
certare."  To  a  foreign  "  feudist "  Littleton's  book  would  seem  absurd 
enough,  because  in  England  the  feudum  had  become  the  general  form 
in  which  all  land-ownership  appeared.  Brunner  (Deutsche  Rechtsge- 
schlchte,  vol.  ii.,  p.  11)  puts  this  well:  "Wo  jedes  Grundeigentum  sich 
in  Lehn  verwandelt,  wird  das  Lehn,  wie  die  Entwicklung  des  englischen 
Rechtes  zeigt,  schliesslich  zum  Begriff  des  Grundeigentums." 

I  have  not  found  in  Polydore  Virgil's  History  anything  about  Little- 
ton. There  is  a  passage  however  in  lib.  ix.  (ed.  Basil.  1556,  p.  154)  in 
which  he  denounces  the  unjust  laws  imposed  by  William  the  Conqueror 
and  (so  he  says)  still  observed  in  his  own  day:  "  Non  possum  hoc  loco 
non  memorare  rem  tametsi  omnibus  notam,  admiratione  tamen  longe 
dignissimam,  atque  dictu  incredibilem :  eiusmodi  namque  leges  quae  ab 
omnibus  intelligi  deberent,  erant,  ut  etiam  nunc  sunt,  Normanica  lingua 
scriptae,  quam  neque  Galli  nee  Angli  recte  callebant."  Among  the 
badges  of  Norman  iniquity  is  trial  by  jury,  which  Polydore  cannot  find 
in  the  laws  of  Alfred.  This  Italian  historiographer  may  well  be  speak- 
ing what  was  felt  by  many  Englishmen  in  Henry  VIII's  day  when  he 
holds  up  to  scorn  and  detestation  "  illud  terribile  duodecim  virorum 
iudicium."  Fisher  and-  More  were  tried  by  jury. 

30  For  Gentili  see  Holland,  Inaugural  Lecture,  1874,  and  Diet.  Nat. 
Bioa.  For  his  attack  on  canon  law  see  De  nuptiis,  lib.  i.,  c.  19.  For 
his  quarrel  with  the  "elegant"  Frenchmen,  see  De  iurig  interpretibus 
dialnt/i  sex.  The  defenders  of  the  new  learning  and  the  mos  Oallicus, 
as  it  was  called,  threw  at  their  adversaries  the  word  "  barbarian  " ;  the 
retort  of  the  conservative  upholders  of  the  mos  Italicus  was  "mere 
grammarian."  By  expelling  such  men  as  the  Gentilis,  Italy  forfeited 
her  pre-eminence  in  the  world  of  legal  study.  Nevertheless  it  is  said 
that  both  in  France  and  Germany  the  practical  Roman  law  of  the  courts 


6.     MAITLAND:    THE    RENAISSANCE       183 

for  a  king  who  wished  to  be  monarch  in  church  as  well  as 
state:  pleasanter  reading  than  could  be  found  in  our  an- 
cient English  law-books.  Surely  Erastianism  is  a  bad  name 
for  the  theory  that  King  Henry  approved:  Marsilianism 
seems  better,  but  Byzantinism  seems  best.31  A  time  had  come 
when,  medieval  spectacles  being  discarded,  men  could  see  with 
the  naked  eye  what  stood  in  the  Code  and  Novels  of  Con- 
stantinople. In  1558  on  the  eve  of  an  explosive  Reformation 
"  the  Protestants  of  Scotland,"  craving  "  remedy  against  the 
tyranny  of  the  estate  ecclesiastical,"  demanded  that  the  con- 
troversy should  be  judged  by  the  New  Testament,  the  an- 
cient' fathers  "  and  the  godly  approved  laws  of  Justinian  the 


was  for  a  long  time  the  law  of  the  "  Bartolist "  tradition.  Esmein 
(Histoire  du  droit  franqais,  ed.  2,  p.  776)  says:  "Cujas  exerca  sur  le 
developpement  des  theories  de  droit  remain  suivies  en  France  une  action 
beaucoup  moins  puissante  que  Du  Moulin,  et  la  filiation  du  romaniste 
Du  Moulin  n'est  pas  niable;  par  la  forme  comme  par  le  fond,  c'est  le 
dernier  des  grands  Bartolistes." 

31  Thomas  Starkey,  when  he  was  trying  to  win  over  Reginald  Pole  to 
Henry's  side,  wrote  thus :  "  Thes  thyngs  I  thynke  schal  be  somewhat  in 
your  mynd  confermyd  by  the  redyng  of  Marsilius,  whome  I  take,  though 
he  were  in  style  rude,  yet  to  be  of  grete  iugement,  and  wel  to  set  out 
thys  mater,  both  by  the  authoryte  of  scripture  and  good  reysonys 
groundyd  in  phylosophy,  and  of  thys  I  pray  you  send  me  your  iuge- 
ment." (Starkey's  England,  Early  Engl.  Text  Soc.  1878,  p.  xxv.)  Cha- 
puis  (the  imperial  ambassador  at  Henry's  court)  to  Charles  V,  3  Jan. 
1534  (Letters  and  Papers  of  Henry  VIII.,  vol.  vii.,  p.  6):  "The  little 
pamphlet  composed  by  the  Council,  which  I  lately  sent  to  your  Majesty, 
is  only  a  preamble  and  prologue  of  others  more  important  which  are 
now  being  printed.  One  is  called  Defensorium  Pads,  written  in  favour 
of  the  emperor  Loys  of  Bavaria  against  apostolic  authority.  Formerly 
no  one  dared  read  it  for  fear  of  being  burnt,  but  now  it  is  translated 
into  English  so  that  all  the  people  may  see  and  understand  it."  William 
Marshall  to  Thomas  Cromwell  (Ibid.,  p.  178)  :  "  Whereas  you  promised 
to  lend  me  £20  towards  the  printing  of  Defensor  Pads,  which  has  been 
translated  this  twelve-month,  but  kept  from  the  press  for  lack  of  money, 
in  trust  of  your  offer  I  have  begun  to  print  it.  I  have  made  an  end 
or  the  Gift  of  Constantine  and  of  Erasmus  upon  the  Creed."  The  "  Gift 
of  Constantine  "  must  be  the  famous  treatise  of  Laurentius  Valla.  The 
translation  of  Marsilius  appeared  on  27  July,  1535  (Diet.  Nat.  Biog. 
s.  n.  William  Marshall).  In  October  twenty-four  copies  had  been  dis- 
tributed among  the  Carthusians  in  London  (Letters  and  Papers,  vol.  ix., 
p.  171).  In  1536  Marshall  complained  that  the  book  had  not  sold, 
though  it  was  the  best  book  in  English  against  the  usurped  power  of 
the  bishop  of  Rome  (Ibid.,  vol.  xi.,  p.  542).  As  to  Byzantinism,  if  it 
be  an  accident  it  is  a  memorable  accident  that  the  strongest  statement 
of  King  Henry's  divinely  instituted  headship  of  the  church  occurs  in 
a  statute  which  enables  unordained  doctors  of  the  civil  (not  canon)  law 
to  exercise  that  plenitude  of  ecclesiastical  jurisdiction  which  God  has 
committed  to  the  king  (Stat.  37  Hen.  VIII.,  c.  17). 


184     //•     FROM    THE    1100'S    TO    THE    1800'S 

emperor."  32  University-bred  jurists,  even  such  as  came  from 
an  oldish  school,  were  very  serviceable  to  King  Henry  in  the 
days  of  the  great  divorce  case  and  the  subsequent  quarrel 
with  the  papacy.  Tunstall,  Gardiner,  Bonner,  Sampson  and 
Clerk,  to  say  nothing  of  the  Leghs  and  Laytons,  were  doc- 
tors of  law  and  took  their  fees  in  bishoprics  and  deaneries.85 
Certainly  they  were  more  conspicuous  and  probably  they 

M  Foreign  Calendar,  1558-9,  p.  8.  This  seems  to  mean  that  the  normal 
nnd  rightful  relation  of  church  to  state  is  that  which  is  to  be  discovered 
in  Justinian's  books.  If  so,  "  the  Protestants  of  Scotland  "  soon  after- 
wards changed  their  opinions  under  the  teaching  of  Geneva  and  claimed 
for  "  the  estate  ecclesiastical "  a  truly  medieval  independence. 

"The  following  facts  are  taken  from  the  Dictionary  of  National  Biog- 
raphy. Cuthbert  Tunstall  (afterwards  bishop  of  Durham)  "gradu- 
ated LL.  D.  at  Padua."  Stephen  Gardiner  (afterwards  bishop  of  Win- 
chester) of  Trinity  Hall,  Cambridge,  "proceeded  doctor  of  the  civil 
law  in  1520  and  of  the  canon  law  in  the  following  year.  ...  In  1524 
he  was  appointed  one  of  Sir  Robert  Rede's  lecturers  in  the  University.'* 
Edmund  Bonner  of  Broadgate  Hall,  Oxford,  "in  1519  he  took  on  two 
successive  days  (12  and  13  June)  the  degrees  of  bachelor  of  civil  and 
of  canon  law.  .  .  .  On  12  July,  1525,  he  was  admitted  doctor  of  civil 
law."  Thomas  Thirlby  (afterwards  bishop  of  Ely)  of  Trinity  Hall, 
Cambridge,  "graduated  bachelor  of  the  civil  law  in  1521  .  .  .  and  pro- 
ceeded doctor  of  the  civil  law  in  1528  and  doctor  of  the  .canon  law  in 
1530."  Richard  Sampson  (afterwards  bishop  of  Lichfield)  of  Trinity 
Hall,  Cambridge,  "  proceeded  B.  C.  L.  in  1505.  Then  he  went  for  six 
years  to  Paris  and  Sens  and  returning  proceeded  D.  C.  L.  in  1513.'* 
John  Clerk  (afterwards  bishop  of  Bath  and  Wells,  Master  of  the  Rolls), 
"  B.  A.  of  Cambridge  1499  and  M.  A.  1502,  studied  law  and  received 
the  doctor's  degree  at  Bologna."  Richard  Layton  (afterwards  dean 
of  York)  "was  educated  at  Cambridge,  where  he  proceeded  B.  C.  L.  in 
1522  and  afterwards  LL.  D."  Thomas  Legh  of  King's  College  (?), 
Cambridge,  "  proceeded  B.  C.  L.  in  1527  and  D.  C.  L.  in  1531."  Instances 
of  legal  degrees  obtained  in  foreign  universities  are  not  very  uncommon. 
John  Taylor,  Master  of  the  Rolls  in  1527,  "  graduated  doctor  of  law  at 
some  foreign  university,  being  incorporated  at  Cambridge  in  1520  and 
at  Oxford  in  1522."  James  Denton,  dean  of  Lichfield,  proceeded  B.  A. 
in  1489  and  M.  A.  in  1492  at  Cambridge.  "  He  subsequently  studied 
canon  law  at  Valencia  in  which  faculty  he  became  a  doctor  of  the 
university  there."  (For  an  earlier  instance,  that  of  Thomas  Alcock  of 
Bologna,  see  Grace  Book  A,  Luard  Memorial,  p.  209.  There  are  other 
instances  in  Boase,  Register  of  the  University  of  Oxford;  consult  index 
under  Padua,  Bologna,  Paris,  Orleans,  Bourges,  Louvain.) 

That  wonderful  divorce  cause,  which  shook  the  world,  created  a  large 
demand  for  the  sort  of  knowledge  that  the  university-bred  jurist  was 
supposed  to  possess,  especially  as  a  great  effort  was  made  to  obtain 
from  foreign  doctors  and  universities  opinions  favourable  to  the  king. 
The  famous  Cambridge  "  Grecian "  Richard  Croke  was  employed  in 
ransacking  Italian  libraries  for  the  works  of  Greek  theologians  and  in 
taking  counsel  with  Hebrew  rabbis.  '  In  Italy,  France  and  Spain,  as 
well  as  in  England,  almost  every  canonist  of  distinction,  from  the  cele- 
brated Philip  Decius  downwards,  must  have  made  a  little  money  out 
of  that  law  suit,  for  the  emperor  also  wanted  opinions. 


6.     M AIT 'LAND:    THE    RENAISSANCE        185 

were  much  abler  men  than  those  who  were  sitting  in  the  courts 
of  the  common  law.  With  the  one  exception  of  Anthony 
Fitzherbert,  the  judges  of  Henry's  reign  are  not  prominent 
in  our  legal  history,  and  we  have  little  reason  for  attributing 
deep  knowledge  of  any  sort  of  law  to  such  chancellors  as 
Audley,  Wriothesley  and  Rich.  I  doubt  our  common  lawyers 
easily  accommodated  themselves  to  ecclesiastical  changes. 
Some  years  after  Elizabeth's  accession  the  number  of  barris- 
ters who  were  known  to  the  government  as  "  papists  "  was 
surprisingly  large  and  it  included  the  great  Plowden.34  But 
we  must  go  back  to  our  main  theme. 

A  Reception  there  was  not  to  be,  nor  dare  I  say  that  a 
Reception  was  what  our  Regius  Professor  or  his  royal  patron 
desired.  As  to  Smith  himself,  it  is  fairly  evident  that  some 
time  afterwards,  when  he  had  resigned  his  chair  and  was 
Elizabeth's  ambassador  at  the  French  court,  he  was  well  con- 
tent to  contrast  the  public  law  of  England  with  that  of 
"  France,  Italy,  Spain,  Germany  and  all  other  countries 
which  "  to  use  his  words  "  do  follow  the  civil  law  of  the 
Romans  compiled  by  Justinian  into  his  Pandects  and  Code."  '5 
The  little  treatise  on  the  Commonwealth  of  England  which 

34  See  the  remarkable  paper  printed   in   Calendar   of  Inner   Temple 
Records,  vol.  L,  p.  470;    also  Mr.  Inderwick's  preface  pp.  1  ff.     In  1570 
Lincoln's   Inn   had   not   been   exacting   the   oath   of   supremacy:    Black 
Book,   vol.   i.,   pp.   369-372.      See   also   the   lives   of   Edmund    Plowden, 
William  Rastell  and  Anthony  Browne  (the  judge)  in  Diet.  Nat.  Bioa.: 
and  for  Browne  see  also  Spanish  Calendar,  1558-67,  pp.  369,  640. 

35  Smith,  Commonwealth  of  England,  ed.  1601,  p.   147:    "I   haue  de- 
clared summarily  as  it  were  in  a  chart  or  map,  or  as  Aristotle  termeth 
it  'ws  'ev  Tfary  the  forme  and  maner  of  gouernment  of  England,  and  the 
policy  thereof,  and  set  before  your  eyes  the  principall  points  wherin  it 
doth  differ  from  the  policy  or  gouernment  at  this  time  vsed  in  France, 
Italy,  Spaine,  Germanic,  and  all  other  Countries,  which  doe  follow  the 
ciuill   law   of   the   Romaines,   compiled   by   lustinian   into   his   pandects 
and  code:    not  in  that  sort  as  Plato  made  his  commonwealth,  or  Xeno- 
phon  his  kingdome  of  Persia,  nor  as  Sir  Thomas  More  his  Vtopia,  beeing 
fained   commonwealths,   such   as   neuer   was   nor   neuer   shall   be,   vaine 
imaginations,  phantasies   of   Philosophers   to   occupie  the   time,   and   to 
exercise  their  wits:    but  so  as  England  standeth,  &  is  gouerned  at  this 
day   the   xxviij.  of  March,  Anno   1565,  in   the   vij.  yeare   of   the   raigne 
and  administration  thereof  by  the  most  vertuous  &  noble  Queene  Eliza- 
beth, daughter  to  King  Henry  the  eight,  and  in  the  one  and   fiftieth 
yeare  of  mine  age,  when  I  was  Ambassadour  for  her  Maiestie,  in  the 
Court  of  Fraunce,  the  Scepter  whereof  at  that  time  the  noble  Prince 
and  of  great  hope  Charles  Maximilian  did  holde,  hauing  then  raigned 
foure  yeares." 


186     //.     FROM    THE    1100'S    TO    THE    1800' S 

he  wrote  at  Toulouse  in  1565  —  a  remarkable  feat,  for  he 
had  no  English  books  at  hand  36  —  became  a  classic  in  the 
next  century,  and  certainly  did  not  underrate  those  tradi- 
tional, medieval,  Germanic  and  parliamentary  elements  which 
were  still  to  be  found  in  English  life  and  law  under  the  fifth 
and  last  of  the  Tudors.  Nevertheless  I  think  that  a  well- 
equipped  lecturer  might  persuade  a  leisurely  audience  to 
perceive  that  in  the  second  quarter  of  the  sixteenth  century 
the  continuity  of  English  legal  history  was  seriously  threat- 
ened.37 

"Smith  to  Haddon,  6  Ap.  1565,  in  G.  Haddoni  Orationes,  Lond.  1567, 
pp.  302-7 :  "  nostrarum  legum  ne  unum  quidem  librum  mecum  attuli  hie 
nee  habebam  Sure  eonsultos  quos  consulerem."  He  has  been  telling  how 
he  wrote  The  Commonwealth  of  England. 

"  From  the  time  of  Bracton  to  the  present  day  Englishmen  have  often 
allowed  themselves  phrases  which  exaggerate  the  practical  prevalence 
of  Roman  law  on  the  continent  of  Europe.  Smith,  for  instance,  who 
had  been  in  many  parts  of  northern  France  and  was  a  learned  and 
observant  man,  must  have  known  that  (to  use  Voltaire's  phrase)  he 
often  changed  law  when  he  changed  horses  and  that  the  Estates  General 
had  lately  been  demanding  a  unification  of  the  divergent  customs  (Vi- 
ollet,  Histoire  du  droit  civil  franqais,  p.  202;  Planiol,  Droit  civil,  1900, 
vol.  i.,  p.  16).  Germans,  who  know  what  an  attempt  to  administer 
Roman  law  really  means,  habitually  speak  of  French  law  as  distinctively 
un-Roman.  Thus  Rudolph  Sohm  (Frankisches  Recht  und  romisches 
Recht,  Weimar,  1880,  p.  76) :  "  die  Gesetzbiicher  Napoleons  I.  zeigen, 
dass  noch  heute  wenigstens  das  Privatrecht  und  Processrecht  Frank- 
reichs  ein  Abkommling  nicht  des  romischen,  noch  des  italienischen, 
sondern  des  frankischen  Rechtes  ist."  So  Planiol  (op.  cit.,  vol.  i.,  p.  26): 
"  Deux  courants  se  sont  trouves  en  presence  lors  de  1'unincation  du  droit 
francais:  1'esprit.  romain  et  les  traditions  coutumieres.  Ce  sont  ces 
dernieres  qui  1'ont  emport6.  Le  Code  a  etc  redig£  a  Paris,  en  plein  pays 
coutumier;  les  conseillers  d'fitat  appartenaient  en  majority  aux  pro- 
vinces septentrionales ;  le  parlement  de  Paris  avait  eu  dans  1'ancien  droit 
un  role  preponderant.  II  n'y  a  done  rien  d'etonnant  a  voir  1'esprit  des 
coutumes  predominer  dans  le  Code;  le  contraire  cut  etc  un  non-sens 
historique."  Until  the  other  day  it  was,  I  believe,  a  common  remark 
that  the  large  part  of  Germany  which  stood  under  the  French  code 
either  in  a  translated  or  untranslated  form  —  and  this  part  contained 
about  one-sixth  of  the  Empire's  population  —  was  the  part  of  Germany 
in  which  the  law  was  least  Roman  and  most  Germanic.  The  division 
of  France  into  two  great  districts  was  not  equal:  before  the  acquisition 
of  Elsass  from  Germany  "les  pays  de  droit  ecrit  comprenaient  a  peine 
les  deux  cinquiemes  de  la  France"  (Planiol,  op.  cit.,  vol.  i.,  p.  11): 
See  the  usful  map  in  Brissaud,  Histoire  du  droit  francais,  p.  152. 
Even  in  the  south  there  was  much  customary  law.  A  famous  sentence 
in  the  eustumal  of  Bordeaux  placed  "  the  written  law "  below  "  natural 
reason"  (Viollet,  op.  cit.,  p.  150).  Still  it  is  not  to  be  denied  that  a 
slow  process  of  romanization  —  very  different  from  the  catastrophic 
Reception  in  Germany  —  went  on  steadily  for  some  five  or  six  centuries ; 
and  a  system  which  as  a  whole  seems  very  un-Roman  to  a  student  of 
what  became  "  the  common'  law  "  of  Germany  may  rightly  seem  Roman 


6\     MAITLAND:    THE    RENAISSANCE        187 

Unquestionably  our  medieval  law  was  open  to  humanistic 
attacks.  It  was  couched  partly  in  bad  Latin,  partly  in 
worse  French.  For  the  business  Latin  of  the  middle  age 
there  is  much  to  be  said.  It  is  a  pleasant  picture  that  which 
we  have  of  Thomas  More  puzzling  the  omniscient  foreigner 
by  the  question  "  An  averia  carucae  capta  in  withernamio 
sunt  irreplegiblia."  38  He  asked  a  practical  question  in  the 
only  Latin  in  which  that  question  could  have  been  asked  with- 
out distortion.  Smith's  acute  glance  saw  that  withernamium 
must  have  something  to  do  with  the  German  wiedernehmen; 
for  among  his  other  pursuits  our  professor  had  interested 
himself  in  the  study  of  English  words.39  But  this  business 
Latin  was  a  pure  and  elegant  language  when  compared  with 
what  served  our  lawyers  as  French.  Pole  and  Smith  might 
well  call  it  barbarous ;  that  it  was  fast  becoming  English 
was  its  one  redeeming  feature.  You  are  likely  to  know  what 
I  must  not  call  the  classical  passage:  it  comes  from  the 
seventeenth  century.  In  all  the  Epistolae  Qbscurorwm  Viro- 
rum  there  is  nothing  better  than  the  report  which  tells  how 
one  of  Sir  Robert  Rede's  successors  was  assaulted  by  a  pris- 
oner "  que  puis  son  condemnation  ject  un  brickbat  a  le  dit 
justice  que  narrowly  mist."  40  It  is  as  instructive  as  it  is 

to  an  Englishman.  Francis  Bacon  knew  that  France  could  not  be 
compendiously  described  as  a  country  governed  by  the  "civil  law.  In 
his  speech  on  the  Union  of  Laws  (Spedding,  Life  and  Letters,  vol.  iii., 
p.  337)  he  accurately  distinguishes  "  Gascoigne,  Languedock,  Provence, 
Dolphinie  "  which  are  "  governed  by  the  letter  or  text  of  the  civil  law  " 
from  "the  Isle  of  France,  Tourayne,  Berry,  Anjou  and  the  rest,  and 
most  of  all  Brittain  and  Normandy,"  which  are  "  governed  by  customs 
which  amount  unto  a  municipal  law,  and  use  the  civil  law  but  only  for 
grounds  and  to  decide  new  and  rare  cases."  English  readers  should 
at  least  know  the  doctrine,  strongly  advocated  in  modern  Germany, 
that  the  private  law  which  was  developed  in  England  by  a  French- 
speaking  court  was  just  one  more  French  coutume;  Sohm,  Frankisches 
Recht  und  romisches  Recht,  p.  69:  "Die  Vorgeschichte  des  englischen 
Rechts  von  heute  hat  nicht  in  England,  sondern  in  Nordfrankreich  ihre 
Heimath  .  .  .  Stolz  kann  die  Lex  Salica  auf  die  zahlreichen  und  mach- 
tigen  Rechte  blicken,  welche  sie  erzeugt  hat." 

38  Blackstone,  Commentaries,  vol.  iii.,  p.  149;  J.  H[oddesdon],  Tho. 
Mori  Vita,  Lond.  1652,  p.  26. 

"Smith,  Commonwealth,  ed.  1601,  p.  141:  "  irithernnm  ...  is  in 
plaine  Dutch  and  in  our  olde  Saxon  language  icyther  nempt." 

40  Pollock,  First  Book  of  Jurisprudence,  p.  283,  from  Dyer's  Reports, 
188  b,  in  the  notes  added  in  ed.  1688:  "  Richardson,  ch.  Just,  de  C. 
Bane,  al  Assises  at  Salisbury  in  Summer  1631.  fuit  assault  per  prisoner 
la  condemne  pur  felony  que  puis  son  condemnation  ject  un  Brickbat 


188    //.     FROM    THE    1100'S    TO    THE    1800' S 

surprising  that  this  jargon  should  have  been  written  in  a 
country  where  Frenchmen  had  long  been  regarded  as  hered- 
itary foes.  This  prepares  us  for  the  remark  that  taught 
law  is  tough  law.  But  when  "  Dunce  "  had  been  set  in  Bo- 
cardo  (and  it  was  a  doctor  of  the  civil  law  who  set  him 
there  41),  why  should  the  old  law-books  be  spared?  They  also 
were  barbarous ;  they  also  were  sufficiently  papistical. 

Turning  to  a  more  serious  aspect  of  affairs,  it  would  not 
I  think  be  difficult  to  show  that  the  pathway  for  a  Reception 
was  prepared.  Not  difficult  but  perhaps  wearisome.  At  this 
point  it  is  impossible  for  us  to  forget  that  the  year  1485, 
if  important  to  students  of  English  history  for  other  reasons, 
is  lamentably  important  for  this  reason,  that  there  Dr. 
Stubbs  laid  down  his  pen.  In  his  power  of  marshalling  legal 
details  so  as  to  bring  to  view  some  living  principle  or  some 
phase  of  national  development  he  has  had  no  rival  and  no 
second  among  Englishmen.  Howbeit,  we  may  think  of  the 
subjected  church  and  the  humbled  baronage,  of  the  parlia- 
ment which  exists  to  register  the  royal  edicts,  of  the  English 
Lex  Regia  which  gives  the  force  of  statutes  to  the  king's 
proclamations,42  of  the  undeniable  faults  of  the  common  law, 
of  its  dilatory  methods,  of  bribed  and  perjured  juries,  of 
the  new  courts  which  grow  out  of  the  King's  Council  and 

a  le  dit  Justice  que  narrowly  mist,  &  pur  ceo  immediately  fuit  indict- 
ment drawn  per  Noy  envers  le  prisoner,  &  son  dexter  manus  ampute 
&  fix  al  Gibbet  sur  que  luy  mesme  immediatment  hange  in  presence 
de  Court."  In  France  the  Ordonnance  of  Villers-Cotterets  (1539) 
decreed  that  the  judgments  of  the  French  courts  should  be  recorded 
no  longer  in  Latin  but  in  French.  "  L'utilit6  de  cette  innovation  .  .  . 
se  comprend  assez  d'elle-meme.  On  dit  qu'un  motif  d'une  autre  nature, 
1'interet  des  belles-lettres,  ne  contribua  pas  moins  a  y  decider  le  roi 
[Francois  I],  cheque  du  latin  barbare  qu'employaient  les  tribunaux. 
tin  arret  rendu  en  ces  termes:  Dicta  curia  debotavit  et  debotat  dictum 
Colinum  de  sua  demanda,  fut,  dit  on,  ce  qui  entraina  la  suppression 
du  latin  judiciaire."  Henri  Martin,  Histoire  de  France,  vol  viii.,  pp. 
272-3;  see  also  Christie,  fitienne  Dolet,  ed.  2,  p.  424. 

41  Ellis,  Original  Letters,  Ser.  II.,  vol.  ii.,  p.  61,  Dr.  Layton  to  Crom- 
well :  "  We  have  sett  Dunce  in  Bocardo  and  have  utterly  banished 
him  Oxforde  for  ever,  with  all  his  blynd  glosses,  and  is  now  made  a 
common  servant  to  evere  man,  fast  nailecle  up  upon  posts  in  all  common 
howses  of  easement." 

"Stat.  31  Hen.  VIII.,  cap.  8.  Already  in  1535  Cromwell  reports 
with  joy  an  opinion  obtained  from  the  judges  to  the  effect  that  in  a 
certain  event  the  king  might  issue  a  proclamation  which  would  be  "as 
effective  as  any  statute"  (Lettert  and  Papers,  Henry  VIII.,  vol.  viii., 
p.  411). 


6.     M  AIT  LAND:    THE    RENAISSANCE         189 

adopt  a  summary  procedure  devised  by  legists  and  decretists. 
Might  not  the  Council  and  the  Star  Chamber  and  the  Court 
of  Requests  —  courts  not  tied  and  bound  by  ancient  formal- 
ism, —  do  the  romanizing  work  that  was  done  in  Germany 
by  the  Imperial  Chamber  Court,  the  Reichskammergerichtf  43 
This  was  the  time  when  King  Henry's  nephew  James  V  was 
establishing  a  new  court  in  Scotland,  a  College  of  Justice, 
and  Scotland  was  to  be  the  scene  of  a  Reception.44 

It  seems  fairly  certain  that,  besides  all  that  he  effected, 
Henry  had  at  times  large  projects  in  his  mind:  a  project 
for  a  great  college  of  law  (possibly  a  College  of  Justice  in 

43  The  story  (with  which  we  are  familiar  in  England)  of  the  evolution 
of  various  councils  and  courts  from  an  ancient  Curia  Regis  seems  to 
have  a  close  parallel  in  French  history:  so  close  that  imitation  on  one 
side  or  the  other  may  at  times  be  suspected.  After  the  parlement  with 
its  various  chambers  (which  answer  to  our  courts  of  common  law)  has 
been  established,  the  royal  council  interferes  with  judicial  matters  in 
divers  ways,  and  sections  of  the  council  become  tribunals  which  compete 
with  the  parlement.  (See  e.g.  Esmein,  Histoire  du  droit  fran^ais, 
ed.  2,  pp.  469  ff.,  and  the  pedigree  of  courts  and  councils  in  Lavisse  et 
Rambaud,  Histoire  gen&rale,  vol.  iv.,  p.  143;  also  the  pedigree  in  N. 
Valois,  Le  conseil  du  roi  (1888),  p.  11;  and  Brissaud,  Histoire  du  droit 
franqais,  pp.  816  ff.)  In  Germany  the  doctors  of  civil  law  made  their 
way  first  into  councils  and  then  into  courts.  "  Die  fremdrechtlich  ge- 
schulten  Juristen  wurden  in  Deutschland  anfanglich  nur  in  Verwal- 
tungssachen  verwendet.  Zur  Rechtsprechung  gelangten  sie  dadurch, 
dass  die  Verwaltung  diese  an  sich  zog,  und  zwar  zuerst  am  Hofe  des 
Konigs"  (Brunner,  Grundzuge  der  deutschen  Rechtsgeschichte,  1901, 
p.  227).  In  the  England  of  Henry  VIII's  day  there  seems  no  little 
danger  that  die  fremdrechtlich  geschulten  Juristen,  of  whom  there  are 
a  good  many  in  the  king's  service,  will  gain  the  upper  hand  in  the  new 
courts  that  have  emerged  from  the  council,  and  will  proceed  from 
Verwaltung  to  Rechtsprechung.  There  came  a  time  when  Dr.  Tunstall 
(who  got  his  law  at  Padua)  was  presiding  over  the  Council  of  the 
North  and  Dr.  Roland  Lee  over  the  Council  of  the  Marches.  In  1538 
Dr.  Lee,  who  was  endeavouring  to  bring  Wales  to  order,  said  in  a 
letter  to  Cromwell,  "If  we  should  do  nothing  but  as  the  common  law 
will,  these  things  so  far  out  of  order  will  never  be  redressed "  (Diet. 
Nat.  Biog.,  vol.  xxxii.,  p.  375). 

In  1534  there  was  a  project  for  the  erection  of  yet  another  new 
court.  See  Letters  and  Papers,  Henry  VIII.,  vol.  vii.,  p.  603:  "Draft 
act  of  parliament  for  the  more  rigid  enforcement  of  previous  statutes, 
appointing  a  new  court,  to  consist  of  six  discreet .  men,  of  whom  three 
at  least  shall  be  outer  barristers  in  the  Inns  of  Court,  who  shall  be 
called  justices  or  conservators  of  the  common  weal  and  sit  together 
in  the  White  Hall  at  Westminster  or  elsewhere,  with  power  to  discuss 
all  matters  relating  to  the  common  weal  and  to  call  before  them  all 
persons  who  have  violated  any  act  of  parliament  made  since  the  begin- 
ning of  Henry  VIII.'s  reign."  If  only  three  of  these  judges  need  be 
barristers,  what  are  the  rest  to  be? 

"  Acts  of  the  Parliament  of  Scotland,  vol.  ii.,  p.  335. 


190    //.     FROM    THE    1100'S    TO    THE    1800'S 

the  Scotch  sense),  a  project  for  the  reformation  of  the  Inns 
of  Court,  which  happily  were  not  rich  enough  to  deserve 
dissolution,45  also  perhaps  a  project  for  a  civil  code  as  well 
as  the  better  known  project  for  a  code  ecclesiastical.  In 
Edward  VI's  day  our  Regius  and  German  Professor  of  Di- 
vinity, Dr.  Martin  Butzer,  had  heard,  so  it  seems,  that  such 
a  scheme  had  been  taken  in  hand,  and  he  moved  in  circles  that 
were  well  informed.  He  urged  the  young  Josiah  to  go  for- 
ward in  the  good  work ;  he  denounced  the  barbarism  of 
English  law  and  (to  use  Bentham's  word)  its  incognoscibil- 
ity.46  The  new  ecclesiastical  code,  as  is  generally  known, 

"See  the  two  papers  that  are  printed  uy  Waterhous,  Fortescutus 
Reftitutus,  1663,  pp.  539,  543.  In  one  of  these  Thomas  Denton,  Nicholas 
Bacon  and  Robert  Gary  are  answering  an  inquiry  addressed  to  them 
by  Henry  VIII  touching  the  plan  of  legal  education  pursued  in  the  Inns 
of  Court.  In  this  there  are  some  phrases  that  tell  of  the  revival  of 
learning.  The  writers  thank  Almighty  God  for  giving  them  a  king 
"  endued  and  adorned  himself  with  all  kindes  and  sortes  of  good  learn- 
ing as  well  divine  as  prophane  "  and  one  who  "  purposeth  to  set  forward 
and  as  it  were  to  revive  the  study  and  perfect  knowledge  thereof  [i.  e. 
of  good  learning],  of  long  time  detested  and  almost  trodden  under 
foot."  They  remark  also  that  many  good  and  gentle  wits  have  perished 
"  chiefly  for  that  most  of  them  in  their  tender  years,  indifferent  to 
receive  both  good  and  bad,  were  so  rooted  and  seasoned,  as  it  were, 
in  barbarous  authors,  very  enemies  to  good  learning,  that  hard  it  was, 
yea  almost  impossible,  to  reduce  them  to  goodness." 

The  other  paper  contains  a  project  for  the  king's  College  of  Law 
submitted  by  the  same  three  writers.  This  looks  like  an  attempt  to 
obtain  a  royally  endowed  school  of  English  law,  and  it  is  curious  to 
observe  that,  not  English,  but  good  French  is  to  take  the  place  of  bad 
French.  "  The  inner  barristers  shall  plead  in  Latine,  and  the  other 
barristers  reason  in  French;  and  either  of  them  shall  do  what  they 
can  to  banish  the  corruption  of  both  tongues."  One  learned  in  French 
is  "  to  teach  the  true  pronuntiation  of  the  French  tongue."  One  of 
excellent  knowledge  in  the  Latin  and  Greek  tongues  is  to  read  "  some 
orator  or  book  of  rhetoric,  or  else  some  other  author  which  treateth 
of  the  government  of  a  commonwealth,  openly  to  all  the  company." 
Students  of  this  college  are  to  be  sent  abroad  to  accompany  ambassa- 
dors, and  two  students  are  to  act  as  historiographers  of  the  realm. 
Nothing  is  said  of  the  civil  law.  On  the  whole,  this  seems  to  be  a 
conservative  proposal  emanating  from  English  barristers  for  bettering 
the  education  of  the  common  lawyer,  and  thus  rendering  unnecessary 
such  a  Reception  as  Pole  had  proposed.  We  do  not  know  that  it 
represents  Henry's  thoughts.  It  was  "  a  civil  law  college  "  that  Somerset 
wished  to  establish  at  Cambridge  by  a  fusion  of  Trinity  Hall  and 
Clare.  (See  MulHnger,  Hist.  Univ.  Camb.,  vol.  ii.,  pp.  134-137.) 

**  Bucerus,  De  regno  Christi,  lib.  ii.,  cap.  56  (Scripta  Anglica,  Basil. 
1577,  p.  148) :  "  Passim  enim  queri  bonos  viros  audio,  leges-  regni  huius 
decorum  [corr.  de  rerum]  proprietatibus  et  commutationibus,  de  succes- 
sionibus  in  bonis  atque  aliis  huius  generis  civilibus  contractibus  et  com- 
merciis,  esse  perobscuras  atque  implicatas:  adeoque  etiam  lingua  per- 
scriptas  quadam  obsoleta  ut  a  nemine  queant  intelligi,  qui  non  et  earn 


6.     M  AIT  LAND:    THE   RENAISSANCE       191 

was  never  enacted;  but  we  know  equally  well  that  the  draft 
is  in  print.  Its  admired  Latinity  is  ascribed  to  Prof.  Smith's 
immediate  successor,  Dr.  Walter  Haddon.  I  take  it  that 
now-a-days  few  English  clergymen  wish  that  they  were  liv- 
ing—  or  should  I  not  say  dying?  —  under  Dr.  Haddon's 
pretty  phrases.47  Codification  was  in  the  air.  Both  in  France 
and  in  Germany  the  cry  for  a  new  Justinian  was  being  raised, 
and  perhaps  we  may  say  that  only  because  a  new  Justinian 
was  not  forthcoming,  men  endeavoured  to  "make  the  best  that 
they  could  of  the  old.48  How  bad  that  best  would  be  Francis 
Hotman  foretold. 

linguam  didicerit  et  earum  legum  intelligentiam  multo  fuerit  studio 
assecutus:  indeque  fieri  ut  plerique  eorum  qui  eas  leges  aliquo  modo 
habent  cognitas,  iurisque  magis  quam  iusticiae  sunt  consulti,  his  ipsis 
legibus  abutantur  pro  hominum  decipulis  retibusque  pecuniarum.  Quo 
regni  non  tolerando  incommodo  permotum  aiunt  praestantissimum  prin- 
cipem  S.  M.  T.  patrem  ut  corrigendis,  elucidandisque  his  legibus  certos 
pridem  homines  deputarit.  Cum  autem  isti  legum  designati  instaura- 
tores,  vel  mole  operis  a*Bsterriti,  vel  aliis  impediti  abstractique  negociis, 
huic  malo  adhuc  nullum  attulerint  remedium,  abusioque  et  perversio 
legum  indies  magis  invalescere  dicatur,  eo  certe  id  erit  S.  M.  T.  et 
maturius  et  pertinacius  elaborandum  quo  leges  illae  quam  rectissime  ac 
planissime  extent  explicatae  .  .  .  Quid  autem  interest  nullae  existant 
leges,  aut  quae  existunt  sint  civibus  ignoratae?" 

Butzer,  as  this  treatise  shows,  had  some  knowledge  of  the  civil  law, 
at  least  in  the  matter  of  divorce.  He  seems  to  think  that  a  code  for 
England  might  be  so  simple  an  affair  that  it  could  be  put  into  rhyme 
and  be  sung  by  children.  (See  Mullinger,  Hist.  Univ.  Camb.,  vol.  ii., 
p.  238.) 

47  Cardwell,  The  Reformation  of  the  Ecclesiastical  Laws,  Oxf.'  1850. 
See  p.  xxvi,  where  Foxe  the  martyrologist  (1571)  testifies  to  the  beauty 
of  Haddon's  Latin,  and  then  says:  "  Atque  equidem  lubens  optarim, 
si  quid  votis  meis  proficerem,  ut  consimili  exemplo,  nee  dissimili  etiam 
oratione  ac  stylo,  prosiliat  nunc  aliquis,  qui  in  vernaculis  nostris  legibus 
perpoliendis  idem  efficiat,  quod  in  ecclesiasticis  istis  praestitit  clarissimae 
memoriae  his  Haddonus."  On  the  question  as  to  the  intended  fate  of 
heretics  (including  both  Roman  Catholics  and  Lutherans)  under  the 
Reformatio  Legum,  see  Hallam,  Const.  Hist.,  ed.  1832,  vol.  i.,  p.  139; 
Maitland,  Canon  Law  in  England,  p.  178. 

^Commines  attributes  to  Louis  XI.  (circ.  an.  1479)  a  project  of  re- 
ducing to  uniformity  all  the  customs  of  France.  Francis  Bacon  more 
than  once,  when  urging  his  schemes  of  law  reform,  referred  to  Louis's 
abortive  project  (Spedding,  Life  and  Letters,  vi.  66;  vii.  362).  Com- 
mines's  story  is  not  rejected  by  modern  historians  of  French  law.  The 
official  redaction  of  the  various  "  general  customs  "  (customs  of  prov- 
inces) was  commanded  in  1453  by  the  ordinance  of  Montils-les-Tours. 
Little,  however,  was  done  in  this  matter  until  the  reigns  of  Charles  VIII 
and  Louis  XII.  Many  customs  were  redacted  about  the  year  1510: 
that  of  Orleans  in  1509 ;  that  of  Paris  in  1510.  This  might  be  described 
as  a  measure  of  codification:  "elle  fit,  des  coutumes,  de  veritables  lots 
tcrites"  or,  as  we  might  say,  statute  law.  (Esmein,  Histoire  du  droit 
franqais,  746  ff . ;  Viollet,  Histoire  du  droit  franqais,  142  ff . ;  Planiol, 


192     //.     FROM    THE    1100'S    TO    THE    1800'S  ' 

And  then  we  see  that  in  1535,  the  year  in  which  More 
was  done  to  death,  the  Year  Books  come  to  an  end :  in  other 
words,  the  great  stream  of  law  reports  that  has  been  flowing 
for  near  two  centuries  and  a  half,  ever  since  the  days  of 
Edward  I,  becomes  discontinuous  and  then  runs  dry.  The 
exact  significance  of  this  ominous  event  has  never  yet  been 
duly  explored ;  but  ominous  it  surely  is.49  Some  words  that 

Droit  civil,  i.  12,  16).  Then  the  Estates  General  at  Orleans  in  1560 
in  effect  demanded  a  general  code:  "Nous  voulons  une  foy,  une  loy, 
un  roy"  said  the  prolocutor  of  the  clergy.  (Dareste,  Hotman,  p.  20.) 
Both  Du  Moulin  and  Hotman  recommended  codification  and  appar- 
ently thought  that  the  task  would  not  be  difficult.  (Viollet,  op.  cit., 
p.  209;  Dareste,  op.  cit.,  p.  21.)  Then  as  to  Germany:  —  "An  die 
Klagen  liber  die  Verwirrung,  in  welche  das  Recht  durch  die  scho- 
lastische  Wissenschaft  gerathen  ist,  knupft  sich  seit  dem  Anfange  des 
16.  Jahrhunderts  regelmassig  das  Verlangen,  der  Kaiser  moge  als  ein 
neuer  Justinian  das  gemeine  Recht  des  Reichs  zur  Einfachheit  und 
Klarheit  gesetzlich  reformiren Das  Verlangen  nach  einer  Codi- 
fication des  gemeinen  Rechts  zieht  sich  durch  das  ganze  16.  Jahrhundert." 
(Stintzing,  Oeschichte  der  deutschen  Rechtswissenschaft,  vol.  i.,  pp. 
58-9.)  In  1532  after  a  prolonged  effort  the  Empire  actually  came  by 
a  criminal  code,  the  so-called  Carolina  (Constitutio  Carolina  Criminalis; 
die  peinliche  Halsgerichtsordnung  Karls  V.),  but  its  operation  was  con- 
fined by  a  clause  which  sanctioned  the  ever  increasing  particularism 
of  the  various  states  by  saving  their  ancient  customs.  (Ibid.,  pp.  621  ff.) 
Within  some  of  these  states  or  "  territories  "  there  was  in  the  sixteenth 
century  a  good  deal  of  comprehensive  legislation,  amounting  in  some 
cases  to  the  publication  of  what  we  might  call  codes.  A  Landrecht 
(to  be  contrasted  with  Reichsrecht)  was  issued  by  the  prince.  His  leg- 
islative action  was  not  always  hampered  by  any  assembly  of  Estates; 
he  des.ired  uniformity  within  his  territory;  and  the  jurists  who  fash- 
ioned his  law-book  were  free  to  romanize  as  much  as  they  pleased.  The 
Wiirtemberg  Landrecht  of  1555  issued  by  Duke  Christopher,  a  prince 
well  known  to  Queen  Elizabeth,  is  one  of  the  chief  instances  (Stintzing, 
op.  cit.,  vol.  i.,  pp.  537  ff.;  Schroder,  Deutsche  Rechtsgeschichte,  ed.  3, 
pp.  886  ff.).  The  transmission  of  the  cry  for  codification  from  Hotman 
to  Leibnitz,  and  then  to  the  enlightened  monarchy  of  the  eighteenth 
century  is  traced  by  Baron,  Franz  Hotmans  Antitribonian,  Bern,  1888. 
In  Scotland  also  the  Regent  Morton  (d.  1581)  entertained  a  project 
of  codification.  A  commission  was  appointed  to  prepare  a  uniform 
and  compendious  order  of  the  laws.  It  seems  to  be  a  question  among 
Scotch  lawyers  how  far  the  book  known  as  Balfour's  Practicks  repre- 
sents the  work  of  the  commissioners.  See  Diet.  Nat.  Biog.,  vol.  xv., 
p.  317;  vol.  iii.,  p.  53. 

48  The  cessation  of  the  Year  Books  in  1535  at  the  moment  when  the 
Henrician  Terror  is  at  its  height  is  dramatically  appropriate.  A  great 
deal,  however,  has  yet  to  be  done  before  the  relevant  facts  will  be  fully 
known.  Mr.  C.  C.  Soule's  Year-Book  Bibliography,  printed  in  Harvard 
Law  Review,  vol.  xiv.,  p.  557,  is  of  high  importance.  If  by  "the  Year 
Books "  we  mean  a  series  of  books  that  have  been  printed,  then  the 
Year  Books  become  intermittent  some  time  before  they  cease.  The 
first  eleven  years  of  Henry  VIII  are  unrepresented,  and  there  are  gaps 
between  years  14  and  18  and  between  19  and  26.  It  remains  to  be  seen 
whether  there  are  MSS.  more  complete  than  the  printed  series.  Then 


6.     M  AIT  LAND:    THE    RENAISSANCE       193 

once  fell  from  Edmund  Burke  occur  to  us :  "  To  put  an  end 
to  reports  is  to  put  an  end  to  the  law  of  England.50  Then 
in  1547  just  after  King  Henry's  death  a  wail  went  up  from 
"  divers  students  of  the  common  laws."  The  common  laws, 
they  said,  were  being  set  aside  in  favour  of  "  the  law  civil  " 
insomuch  that  the  old  courts  had  hardly  any  business.51  Ten 

we  have  on  our  hands  the  question  raised  by  what  Plowden  says  in  the 
Preface  to  his  Commentaries  touching  the  existence  of  official  reporters. 
Plowden  says  that  he  began  to  study  the  law  in  30  Hen.  VIII,  and 
that  he  had  heard  say  that  in  ancient  times  there  were  four  reporters 
paid  by  the  king.  His  words  make  it  clear  that  the  official  reporters, 
if  they  ever  existed,  came  to  an  end  some  considerable  time  before 
30  Hen.  VIII.  The  question  whether  they  ever  existed  cannot  be  raised 
here.  Mr.  Pike's  investigations  have  not,  so  I  think,  tended  to  bear  out 
the  tale  that  Plowden  had  heard;  and  if  the  king  paid  stipends  to  the 
reporters,  some  proof  of  this  should  be  forthcoming  among  the  financial 
records.  The  evidence  of  Francis  Bacon  is  of  later  date  and  looks  like 
a  mere  repetition  of  what  Plowden  said  (Bacon,  Amendment  of  the  Law; 
Spedding,  Life  and  Letters,  vol.  v.,tp.  86). 

But,  be  all  this  as  it  may,  the  fact  seems  clear  that  the  ancient  prac- 
tice of  law  reporting  passed  through  a  grave  crisis  in  the  sixteenth  cen- 
tury. We  know  the  reign  of  Edward  IV  and  even  that  of  Edward  II 
better  than  we  know  that  of  Edward  VI.  The  zeal  with  which  Tottell 
from  1553  onwards  was  printing  old  reports  makes  the  dearth  of  mod- 
ern reports  the  more  apparent.  Then  Plowden  expressly  says  that  he 
reported  "  for  my  private  instruction  only,"  and  Dyer's  Reports  (which 
comprise  some  cases  too  early  to  have  been  reported  by  him)  were 
posthumously  published.  The  total  mass  of  matter  from  the  first  half 
of  the  century  that  we  obtain  under  the  names  of  Broke,  Benloe,  Dali- 
son,  Keilwey,  Moore  and  Anderson  is  by  no  means  large,  and  in  many 
cases  its  quality  will  not  bear  comparison  with  that  of  the  Year  Books 
of  Edward  IV.  (J.  W.  Wallace,  The  Reporters,  ed.  4,  Boston,  1882, 
is  an  invaluable  guide;  see  also  V.  V.  Veeder,  The  English  Reports,  in 
Harvard  Law  Review,  vol.  'xv.,  p.  1.) 

60  Burke,  Report  from  Committee  appointed  to  inspect  the  Lords' 
Journals :  "  To  give  j  udgment  privately  is  to  put  an  end  to  reports ; 
and  to  put  an  end  to  reports  is  to  put  an  end  to  the  law  of  England." 

"Acts  of  the  Privy  Council,  1547-1550,  pp.  48-50.  Petition  of  divers 
students  of  the  common  laws  to  the  Lord  Protector  and  the  Privy  Coun- 
cil: "  Pleasith  it  your  honorable  Lordships  to  call  to  your  remembrance 
that  whereas  the  Imperial  Crowne  of  this  realme  of  Inglande  and  the 
hole  estate  of  the  same  have  been  alwayes  from  the  beginning  a  Reame 
Imperial,  having  a  lawe  of  itself  called  the  Commen  Lawes  of  the  realme 
of  Inglande,  by  which  Lawe  the  Kinges  of  the  same  have  as  Imperial 
Governours  thereof  ruled  and  governed  the  people  and  subjectes  in 
suche  sorte  as  the  like  thereof  hath  nat  been  seen  in  any  other.  .  .  . 
So  it  is,  if  it  like  your  good  Lordships,  that  now  of  late  this  Commen 
Lawes  of  this  realme,  partely  by  Injunctions,  aswel  before  verdictes, 
jugementes  and  execucions  as  after,  and  partly  by  writtes  of  Sub 
Pena  issuing  owte  of  the  Kinges  Courte  of  Chauncery,  hath  nat  been 
only  stayed  of  their  directe  course,  but  also  many  times  altrid  and 
violated  by  reason  of  Decrees  made  in  the  saide  Courte  of  Chauncery, 
most  grounded  upon  the  lawe  civile  and  apon  matter  depending  in 
the  conscience  and  discrecion  of  the  hearers  thereof,  who  being  Civilians 


194    //.     FROM    THE    1100'S    TO    THE    1800'S 

years  later,  at  the  end  of  Mary's  reign,  we  read  that  the 
judges  had  nothing  to  do  but  "  to  look  about  them,"  and 
that  for  the  few  practitioners  in  Westminster  Hall  there  was 

and  nat  lerned  in  the  Comen  Lawes,  setting  aside  the  saide  Coromen 
Lawes,  determyne  the  waighty  causes  of  this  realme  according  either 
to  the  saide  Lawe  Civile  or  to  their  owrie  conscience;  which  Lawe  Civile 
is  to  the  subjectes  of  this  realme  unknowne,  and  they  nat  bounden  ne 
inheritable  to  the  same  lawe,  and  which  Jugementes  and  Decrees 
grownded  apon  conscience  ar  nat  grounded  ne  made  apon  any  rule 
certeine  or  lawe  written.  .  .  .  And  for  a  more  amplyfyeng  and  inlarging 
of  the  jurisdiction  of  the  saide  Courte  of  Chauncery  and  derogacion  of 
the  saide  Comen  Lawes  there  is  of  late  a  Commission  made  contrary 
to  the  saide  Commen  Lawes  unto  certaine  persones,  the  more  part 
whereof  be  Civilians  nat  learned  in  the  saide  Lawes  of  this  realme, 
autorising  them  to  heare  and  determyne  all  matters  and  cawses  ex- 
hibited into  the  saide  Courte  of  Chauncery,  by  occasion  whereof  the 
matters  there  do  daily  more  and  more  increase,  insomuch  as  very  fewe 
matters  be  now  depending  at  the  Comen  Lawes.  .  .  .  And  by  reason 
thereof  there  hath  of  late  growne  such  a  discourage  unto  the  studentes 
of  the  saide  Commen  Lawes,  and  the  saide  Commen  Lawes  have  been 
of  "late  so  little  estemed  and  had  in  experience,  that  fewe  have  or  do 
regarde  to  take  paynes  of  the  profownde  and  sincere  knolege  of  the 
same  Lawe,  by  reason  whereof  there  ar  now  very  few,  and  it  is  to 
be  doubted  that  within  fewe  yeares  there  shall  nat  be  sufficient  of  lerned 
men  within  this  realme  to  serve  the  king  in  that  facultie.  It  therfore 
may  please-  your  honorable  Lordships  to  make  suche  speady  reforma- 
cion  in  the  premisses  as  unto  your  Lordships  shall  seem  moste  mete 
and  convenient." 

This  petition  led  to  the  disgrace  and  punishment  of  the  chancellor, 
the  Earl  of  Southampton  (Wriothesley),  for  having  issued  a  commission 
without  warrant  and  without  consulting  his  fellow-executors  of  King 
Henry's  will.  With  Somerset's  motives  for  thrusting  Southampton 
aside  we  are  not  concerned.  (See  Pollard,  England  under  the  Pro- 
tector Somerset,  pp.  31-33.)  That  he  had  any  desire  to  protect  the 
common  lawyers  we  must  not  assume;  but  the  petition  itself  deserves 
attention.  The  commissioners  to  whom  Southampton  had  delegated 
judicial  powers  were  Robert  Southwell  (master  of  the  rolls),  John 
Tregonwell,  John  Oliver,  and  Anthony  Bellasyse  (masters  of  chancery). 
Tregonwell,  Oliver  and  Bellasyse  were  all  doctors  of  the  civil  law  (Diet. 
Nat.  Biog.). 

In  1536  during  the  Pilgrimage  of  Grace  one  of  the  demands  of  the 
catholic  insurgents  was  "  that  the  common  laws  may  have  place  as  was 
used  at  the  beginning  of  the  reign  and  that  no  injunctions  be  granted 
unless  the  matter  has  been  determined  in  chancery."  This  comes  at  the 
end  of  a  long  reactionary  programme,  which  desires  the  restoration  of 
the  monasteries,  of  the  papal  supremacy  and  so  forth:  also  the  repeal 
of  the  statute  "That  no  man  shall  not  will  his  lands"  [Statute  of 
Uses].  The  heretical  bishops  [Cranmer  and  his  like]  are  to  be  burnt; 
Cromwell  is  "  to  have  condign  punishment."  Also  "  a  man  is  to  be  saved 
by  his  book,"  i.  e.  there  is  to  be  no  infringement  of  the  benefit  of  clergy. 
The  heresies  to  be  suppressed  are  those  of  "  Luther,  Wyclif,  Husse, 
Malangton,  Elicampadus  [Oecolampadius],  Bucerus,  Confessa  Germaniae 
[Augsburg  Confession],  Apolugia  Malanctons,  the  works  of  Tyndall, 
of  Barnys,  of  Marshall,  Raskell  [Rastell,  the  printer  of  law  books], 
Seynt  Germayne  [author  of  Doctor  and  Student]  and  such  other  here- 
sies of  Anibaptist."  As  I  understand  the  protest  against  injunctions, 


6.     MAITLAND:    THE    RENAISSANCE        195 

"  elbow  room  enough."  52  In  criminal  causes  that  were  of 
any  political  importance  an  examination  by  two  or  three 
doctors  of  the  civil  law  threatened  to  become  a  normal  part 
of  our  procedure.53  In  short,  I  am  persuaded  that  in  the 
middle  years  of  the  sixteenth  century  and  of  the  Tudor  age 
the  life  of  our  ancient  law  was  by  no  means  lusty. 

And  now  we  may  ask  what  opposing  force,  what  conserv- 
ative principle  was  there  in  England?  National  character, 
the  genius  of  a  people,  is  a  wonder-working  spirit  which 
stands  at  the  beck  and  call  of  every  historian.  But  before 
we  invoke  it  on  the  present  occasion  we  might  prudently  ask 
our  books  whether  in  the  sixteenth  century  the  bulk  of  our 
German  cousins  inherited  an  innate  bias  towards  what  they 
would  have  called  a  Welsh  jurisprudence.  There  seems  to  be 
plentiful  evidence  that  the  learned  doc  tores  iuris  who  coun- 
selled the  German  princes  and  obtained  seats  in  the  courts 
were  cordially  detested  by  the  multitude.  In  modern  times 
they  often  have  to  bear  much  blame  for  that  terrible  revolt 
which  we  know  as  the  Peasants'  War.54  No  doubt  there  were 

it  means  that  the  chancery  may  interfere  with  an  action  at  common 
law,  only  if  that  action  is  opening  a  question  already  decided  in  the 
chancery.  It  will  be  seen  that  in  1536  the  cause  of  "  the  common  laws  " 
finds  itself  in  very  queer  company:  illiterate,  monkish  and  papistical 
company,  which  apparently  has  made  a  man  of  "  Anibaptist."  ( For  this 
important  manifesto,  see  Letters  and  Papers,  Henry  VIII.,  vol.  xi.,  pp. 
506-507.) 

62  Stow,  Annals,  ed.  1615,  p.  631:    "This  yeere   (1557)   in  Michaelmas 
terme  men  might  have  scene  in  Westminster  hall  at  the  Kinges  bench 
barre  not  two  men  of  law  before  the  iustices;   there  was  but  one  named 
Fostar,  who  looked  about  and  had  nothing  to  doe,  the  iudges  looking 
about  them.     In  the  common  place   [Court  of  Common  Pleas]   no  moe 
sergeants    but    one,   which    was    sergeant    Bouloise    [Bendlowes?],    who 
looked  about  him,  there  was  elbow  roome  enough,  which  made  the  law- 
yers complaine  of  their  iniuries  in  that  terme."     In  1536  John  Rastell 
the  lawyer  and  printer  of  law  books  complains  to  Cromwell  that  in  both 
capacities   he  is  in  a  bad   way:    he  used   to  print   from   two   to   three 
hundred  reams  every  year  but  now  prints  not  a  hundred  reams  in  two 
years;    he  used  to  make  forty  marks  a  year  by  the  law  and  now  does 
not  make  forty  shillings    (Ellis,  Original  Letters,  Ser.   III.,  vol.  ii.,  p. 
309).    On  such  stories  as  these  little  stress  is  laid;   but  until  the  judicial 
records  of  the  Tudor  reigns  are  statistically  examined,  scraps  of  in- 
formation may  be  useful. 

63  For  an  instance  see  the  examination  of  a  servant  of  the  Abbot 
of  Sawley  by  Drs.  Layton,  Legh  and  Petre  (Letters  and  Papers,  Henry 
VIII.,  vol.  xii.,  pt.  1,  p.  231). 

84  As  to  the  evil  done  to  the  peasants  in  Germany  by  the  Reception 
of  Roman  law,  see  Egelhaaf,  Deutsche  Geschichte  (Zeitalter  der  Refor- 
mation), vol.  i.,  pp.  544  If.;  Lamprecht,  Deutsche  Geschichte,  vol.  v.,  pp. 


196    //.     FROM    THE   1100'S    TO    THE    1800'S 

many  differences  between  England  and  Germany,  between 
England  and  France,  between  England  and  Scotland.55  Let 

99  ff.  Dr.  Brunner  (Orundziige  der  deutschen  Rechtsgeschichte,  1901, 
p.  216)  has  lately  said  that  Roman  jurisprudence  "  auch  wenn  sie  nicht 
geradezu  bauernfeindlich  war,  doch  kein  Verstandnis  besass  fur  die 
Mannigfaltigkeit  der  bauerlichen  Besitzformen  des  deutschen  Rechtes." 
One  of  the  revolutionary  programmes  proposed  an  exclusion  of  all  doc- 
tors of  civil  or  canon  law  from  the  courts  and  councils  of  the  princes. 
See  Egelhaaf,  op.  cit.,  pp.  499,  598.  The  following  is  a  pretty  little 
tale:  —  "So  geschah  es  wirklich  einmal  zu  Frauenfeld  im  Thurgau,  wo 
die  Schoffen  einen  Doctor  aus  Constanz,  der  sich  fur  die  Entscheidung 
eines  Erbschaftsstreites  auf  Bartolus  und  Baldus  berufen  wollte,  zur 
Thiire  hinauswarfen  mit  den  Worten:  '  Hort  ihr,  Doctor,  wir  Eidge- 
nossen  fragen  nicht  nach  dem  Bartele  und  Baldele.  Wir  haben  sonder- 
bare  Landbrauche  und  Rechte.  Naus  mit  euch,  Doctor,  naus  mit  euch ! ' 
Und  habe,  heisst  es  in  dem  Berichte  weiter,  der  gute  Doctor  miissen 
abtreten,  und  sie  Amtleute  haben  sich  einer  Urtel  verglichen,  den  Doc- 
tor wieder  eingefordert  und  ein  Urtel  geben  wider  den  Bartele  und 
Baldele  und  wider  den  Doctor  von  Constanz."  (Janssen,  Qeschichte  des 
deutschen  Volkes,  vol.  i.,  p.  490.)  It  is  a  serious  question  what  would 
have  become  of  our  English  copyholders  if  in  the  sixteenth  century 
Roman  law  had  been  received.  The  practical  jurisprudence  of  this  age 
seems  to  have  been  kinder  to  the  French  than  to  the  German  peasant; 
perhaps  because  it  was  less  Roman  in  France  than  in  Germany.  See  E. 
Levasseur  in  Lavisse  et  Rambaud,  Histoire  generale,  vol.  iv.,  p.  188: 
"Des  jurisconsultes  commence  rent  a  considerer  1'infeodation  comme 
une  alienation  et  le  colon  censitaire  comme  le  veritable  proprietaire  de 
la  terre  sur  laquelle  le  seigneur  n'aurait  possede"  qu'un  droit  eminent." 
The  true  Romanist,  I  take  it,  can  know  but  one  dominium,  and  is  likely 
to  give  that  one  to  the  lord. 

88  As  regards  Germany,  the  theoretical  continuance  of  the  Roman 
empire  is  not  to  be  forgotten,  but  its  influence  on  the  practical  Recep- 
tion of  Roman  law  may  be  overrated.  In  the  age  of  the  Reception 
Roman  law  came  to  the  aid,  not  of  imperialism,  but  of  particularism. 
Then  it  is  true  that  English  law  was  inoculated  in  the  thirteenth  cen- 
tury when  Bracton  copied  from  Azo  of  Bologna.  The  effect  of  this 
is  well  stated  by  Dr.  Brunner  in  the  inaugural  address  delivered  by 
him  as  rector  of  the  University  of  Berlin  (Der  Antheil  des  deutschen 
Rechtes  an  der  Entwicklung  der  Universitdten,  Berlin,  1896,  p.  15): 
"In  England  und  Frankreich,  wo  die  Aufnahme  romischer  Rechtsge- 
danken  friiher  erfolgte,  hat  diese  nach  Art'  einer  prophylactischen  Im- 
pfung  gewirkt  und  das  mit  ihnen  gesattigte  nationale  Recht  widerstands- 
fahig  gemacht  gegen  zerstorende  Infectionen."  As  to  the  Roman  law 
in  Bracton,  I  may  be  allowed  to  refer  to  Bracton  and  Azo,  Selden 
Society,  1895:  in  the  introduction  to  that  volume  I  have  ventured  to 
controvert  some  sentences  that  were  written  by  Sir  H.  Maine.  Bracton 
became  important  for  a  second  time  in  the  sixteenth  century  when 
(1569)  his  book  was  printed,  for  it  helped  Coke  to  arrange  his  ideas, 
as  any  one  may  see  who  looks  at  the  margin  of  Coke's  books.  The 
medieval  chancery  has  often  been  accused  of  romanizing.  Its  procedure 
was  suggested  by  a  summary  procedure  that  had  been  devised  by  decre- 
tists  and  legists:  the  general  aim  of  that  scheme  was  the  utmost  sim- 
plicity and  rapidity.  (Contrast  this  summary  procedure  as  revealed 
by  Select  Cases  in  Chancery,  ed.  Baildon,  and  'Select  Cases  in  the  Court 
of  Requests,  ed.  Leadam,  with  the  solemn  procedure  of  the  civil  law 
exemplified  by  Select  Cases  in  the  Court  of  Admiralty,  ed.  Marsden: 


6.     MAITLAND:    THE    RENAISSANCE       197 

us  notice  one  difference  which,  if  I  am  not  mistaken,  marked 
off  England  from  the  rest  of  the  world.  Medieval  England 
had  schools  of  national  law. 

The  importance  of  certain  law  schools  will  be  readily  con- 
ceded, even  to  one  who  is  in  some  sort  officially  bound  to  believe 
that  law  schools  may  be  important.  A  history  of  civilization 
would  be  miserably  imperfect  if  it  took  no  account  of  the  first 
new  birth  of  Roman  law  in  the  Bologna  of  Irnerius.  Indeed 
there  are  who  think  that  no  later  movement,  —  not  the 
Renaissance,  not  the  Reformation  —  draws  a  stronger  line 
across  the  annals  of  mankind  than  that  which  is  drawn  about 
the  year  1100  when  a  human  science  won  a  place  beside  theol- 
ogy. I  suppose  that  the  importance  of  the  school  of  Bourges 
would  also  be  conceded.  It  may  be  worth  our  while  to  remark 
that  the  school  of  Bologna  had  a  precursor  in  the  school  of 
Pavia,  and  that  the  law  which  was  the  main  subject  of  study 
in  the  Pavia  of  the  eleventh  century  was  not  Roman  law  but 
Lombard  law :  a  body  of  barbaric  statutes  that  stood  on  one 
level  with  the  Anglo-Saxon  laws  of  the  same  age.  This  I  say, 
not  in  order  that  I  may  remind  you  what  sort  of  law  it  was 

these  three  books  are  published  by  the  Selden  Society.)  On  the  other 
hand,  no  proof  has  been  given  that  in  the  middle  age  the  chancery 
introduced  any  substantive  law  of  Roman  origin.  At  a  later  time 
when  it  began  to  steal  work  (suits  for  legacies  and  the  like)  from  the 
ecclesiastical  courts,  it  naturally  borrowed  the  rules  by  which  those 
matters  had  theretofore  been  governed. 

A  full  history  of  the  Reception  in  Scotland  seems  to  be  a  desideratum. 
But  see  Goudy,  Fate  of  Roman  Law  (Inaugural  Lecture),  1894;  also 
J.  M.  Irvine,  Roman  Law  in  Green's  Encyclopcedia  of  the  Law  of  Scot- 
land. Whether  at  any  time  the  Reception  in  Scotland  ran  the  length 
that  it  ran  in  Germany  may  be  doubted;  but  the  influence  exercised  by 
English  example  since  1603  would  deserve  the  historian's  consideration. 
Even  if  this  influence  went  no  further  than  the  establishment  of  the 
habit  of  finding  "  authority "  in  decided  cases,  it  would  be  of  great 
importance.  Where  such  a  habit  is  established  in  practice  and  sanctioned 
by  theory,  any  return  to  the  pure  text,  such  as  that  which  was  preached 
in  Germany  by  "  the  historical  school,"  would  be  impossible.  Also  it 
may  be  suggested  that  the  Roman  law  which  played  upon  the  law  of 
Scotland  in  the  seventeenth  and  eighteenth  centuries  was  not  always 
very  Roman,  but  was  strongly  dashed  with  "  Natural  Law."  For  in- 
stance, if  in  Scotland  the  firm  of  partners  is  a  "legal  person,"  this 
is  not  due  to  the  influence  of  Roman  law  as  it  is  now  understood  by 
famous  expositors,  or  as  it  was  understood  in  the  middle  ages.  Also 
(to  take  another  example)  it  seems  impossible  to  get  the  Scotch  "  trust " 
out  of  Roman  law  by  any  fair  process.  The  suggestion  that  it  is  "  a 
contract  made  up  of  the  two  nominate  contracts  of  deposit  and  man- 
date "  seems  a  desperate  effort  to  romanize  what  is  not  Roman. 


198    //.     FROM    THE    1100'S    TO    THE    1800'S 

that  Archbishop  Lanfranc  studied  when  as  a  young  man  he 
was  a  shining  light  in  the  school  of  Pavia,  but  because  this 
body  of  Lombard  law,  having  once  become  the  subject  of 
systematic  study,  showed  a  remarkable  vitality  in  its  struggle 
with  Roman  jurisprudence.  Those  Italian  doctors  of  the 
middle  age  who  claimed  for  their  science  the  fealty  of  all 
mankind  might  have  been  forced  to  admit  that  all  was  not 
well  at  home.  They  might  call  this  Lombard  law  ius  asininum 
and  the  law  of  brute  beasts,  but  it  lingered  on,  and  indeed  I 
read  that  it  was  not  utterly  driven  from  the  kingdom  of 
Naples  until  Joseph  Bonaparte  published  the  French  code. 
Law  schools  make  tough  law.66 

Very  rarely  do  we  see  elsewhere  the  academic  teaching  of 
any  law  that  is  not  Roman :  imperially  or  papally  Roman. 
As  a  matter  of  course  the  universities  had  the  two  legal 
faculties,  unless,  as  at  Paris,  the  Pope  excluded  the  legists 
from  an  ecclesiastical  preserve.  The  voice  of  John  Wyclif 
pleading  that  English  law  was  the  law  that  should  be 
taught  in  English  universities  was  a  voice  that  for  centuries 
cried  in  the  wilderness.  It  was  1679  before  French  law  ob- 
tained admission  into  the  French  universities.57  It  was  1709 
before  Georg  Beyer,  a  pandectist  at  Wittenberg,  set  a  prec- 
edent for  lectures  on  German  law  in  a  German  university.58 

"Fertile,  Storia  del  diritto  italiano,  ed.  2,  vol.  ii.  (2),  p.  69:  "  Laonde 
pu6  dirsi  che  1'  abrogazione  definitive  ed  espressa  della  legislazione 
longobardica  nel  regno  di  Napoli  non  abbia  avuto  luogo  se  non  al 
principle  del  nostro  secolo,  sotto  Giuseppe-  Bonaparte,  al  momento  in 
cui  vennero  publicati  cola  i  codici  francesi."  On  p.  65  will  be  found 
some  of  the  opprobrious  phrases  that  the  civilians  applied  to  Lombard 
law:  "nee  meretur  ius  Lombardorum  lex  appellari  sed  faex":  "non 
sine  ratione  dominus  Andreas  de  Isernia  vocat  leges  illas  ius  asininum." 

87  Esmein,  Histoire  du  droit  francais,  ed.  2,  p.  757:  "  C'est  seulement 
en  1679  que  1'enseignement  du  droit  francais  recut  une  place  bien 
modeste  dans  les  universit6s."  Viollet,  Histoire  du  droit  civil  franqais, 
p.  217:  "Lorsqu'en  1679,  Louis  XIV.  e>igea  a  la  facult6  de  Paris  une 
chaire  de  droit  francais  et  une  chaire  de  droit  romain,  le  premier  pro- 
fesseur  de  droit  francais,  Fr.  de  Launay,  commenta  les  Institutes  de 
Loisel,  qui  prirent  ainsi  une  situation  quasi-officielle  a  cotd  des  Insti- 
tutes de  Justinien."  Brissaud,  Histoire  du  droit  francais,  p.  237:  "  Le 
latin  avait  ele  j  usque-la  la  langue  de  1'ecole.  Le  premier  professeur 
en  droit  francais  a  Paris,  de  Launay,  fit  son  cours  en  langue  francais." 

"Siegel,  Deutsche  Rechtsgeschichte,  ed.  3,  p.  152:  "Den  ersten  und 
zugleich  entscheidenden  Schritt  in  dieser  Richtung  that  Georg  Beyer, 
welcher  .  .  .  zunachst  durch  einen  Zufall  veranlasst  wurde,  and  der  Wit- 
tenberger  Universitat,  wohin  er  als  Pandektist  berufen  worden  war,  1707 
eine  Vorlesung  liber  das  ius  germanicum  anzukiindigen  und  zu  halten." 


6.     M  AIT  LAND:    THE    RENAISSANCE       199 

It  was  1758  before  Blackstone  began  his  ever  famous  course 
at  Oxford.  The  chair  that  I  cannot  fill  was  not  established 
until  the  transatlantic  Cambridge  was  setting  an  example  to 
her  elderly  mother.59  But  then,  throughout  the  later  middle 
age  English  law  had  been  academically  taught. 

No  English  institutions  are  more  distinctively  English  than 
the  Inns  of  Court ;  of  none  is  the  origin  more  obscure.  We 
are  only  now  coming  into  possession  of  the  documents  whence 
their  history  must  be  gathered,  and  apparently  we  shall  never 
know  much  of  their  first  days.60  Unchartered,  unprivileged, 
unendowed,  without  remembered  founders,  these  groups  of 
lawyers  formed  themselves  and  in  course  of  time  evolved 
a  scheme  of  legal  education:  an  academic  scheme  of  the 
medieval  sort,  oral  and  disputatious.  For  good  and  ill  that 
was  a  big  achievement:  a  big  achievement  in  the  history  of 

89  Thayer,  The  Teaching  of  English  Law  at  Universities  in  Harvard- 
Law  Review,  vol.  ix.,  p.  171:  "  Blackstone's  example  was  immediately 
followed  here.  ...  In  1779  ...  a  chair  of  law  wa*s  founded  in  Virginia 
at  William  and  Mary  College  .  .  .  and  in  the  same  year  Isaac  Royall 
of  Massachusetts,  then  a  resident  in  London,  made  his  will,  giving  prop- 
erty to  Harvard  College  for  establishing  there  that  professorship  of 
law  which  still  bears  his  name."  The  Royall  professorship  was  actually 
founded  in  1815  (Officers  and  Graduates  of  Harvard,  1900,  p.  24).  At 
Cambridge  (England)  the  Downing  professorship  was  founded  in  1800. 

60  See  Records  of  the  Honorable  Society  of  Lincoln's  Inn,  1896  ff. ; 
Calendar  of  the  Records  of  the  Inner  Temple,  1896.  The  records  of 
Gray's  Inn  are,  so  I  understand,  to  be  published.  See  also  Philip  A. 
Smith,  History  of  Education  for  the  English  Bar,  1860;  Joseph  Walton, 
Early  History  of  Legal  Studies  in  England,  1900,  read  at  a  meeting 
of  the  American  Bar  Association  in  1899.  In  foreign  countries  there 
were  gilds  or  fraternities  of  lawyers.  Thus  in  Paris  the  avocats  and 
procureurs  about  the  middle  of  the  fourteenth  century  formed  a  fra- 
ternity of  St.  Nicholas:  "  dont  le  chef  porte  le  baton  ou  banniere  (de 
la  le  nom  de  batonnier)  ":  Brissaud,  Histoire  du  droit  franqais,  p.  898. 
But,  though  a  certain  care  for  the  education  of  apprentices  was  a  nat- 
ural function  of  the  medieval  craft-gild,  I  cannot  find  that  elsewhere 
than  in  England  fraternities  of  legal  practitioners  took  upon  themselves 
to  educate  students  and  to  give  what  in  effect  were  degrees,  and  degrees 
which  admitted  to  practice  in  the  courts.  R.  Delachenal,  Histoire  des 
avocats  au  parlement  de  Paris  (Paris,  1885),  says  that,  though  not 
proved,  it  is  probable  that  already  in  the  fourteenth  and  fifteenth  cen- 
turies the  avocat  had  to  be  either  \\cenc\e  en  lois  or  licencie  en  decret: 
in  other  words,  a  legal  degree  given  by  an  university  was  necessary  for 
the  intending  practitioner.  As  regards  the  England  of  the  same  age 
two  interesting  questions  might  be  asked.  Was  there  any.  considerable 
number  of  doctors  or  bachelors  of  law  who  were  not  clergymen?  Had 
the  English  judge  or  the  English  barrister  usually  been  at  an  univer- 
sity? I  am  inclined  to  think  that  a  negative  answer  should  be  given 
to  the  first  question  and  perhaps  to  the  second  also.  Apparently  Little- 
ton (to  take  one  example)  is  not  claimed  by  Oxford  or  Cambridge. 


200     //.     FROM    THE    1100'S    TO    THE    1800'S 

some  undiscovered  continents.  We  may  well  doubt  whether 
aught  else  could  have  saved  English  law  in  the  age  of  the 
Renaissance.  What  is  distinctive  of  medieval  England  is  not 
parliament,  for  we  may  everywhere  see  assemblies  of  Estates, 
nor  trial  by  jury,  for  this  was  but  slowly  suppressed  in 
France.  But  the  Inns  of  Court  and  the  Year  Books  that  were 
read  therein,  we  shall  hardly  find  their  like  elsewhere.  At  all 
events  let  us  notice  that  where  Littleton  and  Fortescue  lec- 
tured, there  Robert  Rede  lectures,  Thomas  More  lectures, 
Edward  Coke  lectures,  Francis  Bacon  lectures,  and  highly 
technical  were  the  lectures  that  Francis  Bacon  gave.  Now  it 
would,  so  I  think,  be  difficult  to  conceive  any  scheme  better 
suited  to  harden  and  toughen  a  traditional  body  of  law  than 
one  which,  while  books  were  still  uncommon,  compelled  every 
lawyer  to  take  part  in  legal  education  and  every  distin- 
guished lawyer  to  read  public  lectures.  That  was  what  I 
meant  when  I  made  bold  to  say  that  Robert  Rede  was  not 
only  an  English  judge  but  "  what  is  more "  a  reader  hi 
English  law. 

Deus  bone!  exclaimed  Professor  Smith  in  his  inaugural 
lecture,  and  what  excited  the  learned  doctor  to  this  outcry 
was  the  skill  in  disputation  shown  by  the  students  of  English 
law  in  their  schools  at  London.  He  was  endeavouring  to 
persuade  his  hearers  that  in  many  ways  the  study  of  law 
would  improve  their  minds.  If,  he  urged,  these  young  men, 
cut  off  as  they  are  from  all  the  humanities,  can  reason  thus 
over  their  "  barbaric  and  semi-gallic  laws,"  what  might  not 
you,  you  cultivated  scholars  do  if  you  studied  the  Digest  and 
Alciatus  and  Zasius?  And  then  the  professor  expressed  a 
hope  that  he  might  be  able  to  spend  his  vacation  in  the  Inns 
of  Court.01  His  heart  was  in  the  right  place:  in  a  school 

"Smith,  Inaugural  Oration,  MS.  Baker,  xxxvii.  409  (Camb.  Univ. 
Lib.):  "...  At  vero  nostrates,  et  Londinenses  iurisconsulti,  quibuscum 
disputare,  cum  ruri  sim  et  extra  academiam,  non  illibenter  soleo,  qui 
barbaras  tantum  et  semigallicas  nostras  leges  inspexerint,  homines  ab 
omnibus  suis  humanioribus  disciplinis  et  hac  academiae  nostrae  instruc- 
tione  semotissimi,  etiam  cum  quid  e  philosophia,  theologiave  depromp- 
tum  in  quaestione  ponatur,  Deus  bone!  quam  apte,  quamque  explicate 
singula  resumunt,  quanta  cum  facilitate  et  copia,  quantaque  cum  gratia 
et  venustate,  vel  confirmant  sua,  vel  refellunt  aliena!  Certe  nee  dialec- 
ticae  vim  multum  in  eis  desideres,  nee  eloquentiae  splendorem.  Eorum 
oratio  est  Anglicana  quidem,  sed  non  sordida,  non  inquinata,  non  trivi- 


6.     M AIT 'LAND:    THE    RENAISSANCE       201 

of  living  law.  Even  for  the  purposes  of  purely  scientific 
observation  the  live  dog  may  be  better  than  the  dead  lion. 

When  the  middle  of  the  century  is  past  the  signs  that 
English  law  has  a  new  lease  of  life  become  many.  The 
medieval  books  poured  from  the  press,  new  books  were  written, 
the  decisions  of  the  courts  were  more  diligently  reported,  the 
lawyers  Were  boasting  of  the  independence  and  extreme 
antiquity  of  their  system.62  We  were  having  a  little  Renais- 
sance of  our  own:  or  a  gothic  revival  if  you  please.  The 

alls,  gravis  nonnunquam  et  copiosa,  saepe  urbana  et  faceta,  non  de- 
stituta  similitudinum  et  exemplorum  copia,  lenis  et  aequabilis,  et  pleno 
velut  alveo  fluens,  nusquam  impedita.  Quae  res  tantam  mihi  eorum 
hominum  admirationem  concitavit,  ut  aliquandiu  vehementer  optarim, 
secessionem  aliquam  ab  ista  academia  facere  et  Londinum  concedere, 
ut  eos  in  suis  ipsis  scholis  ac  circulis  disputantes  audirem,  quod  an 
sim  facturus  aliquando,  cum  feriae  longae,  et  quasi  solenne  iusticium, 
nostris  praelectionibus  indicatur,  baud  equidem  pro  certo  affirmaverim." 

82  Soule,  Year  Book  Bibliography,  in  Harvard  Law  Review,  vol.  xiv., 
p.  564:  "In  1553  the  field  of  Year-Book  publication  was  entered  by 
Richard  Tottell,  who  for  thirty-eight  years  occupied  it  so  fully  as  to 
admit  no  rival.  There  are  about  225  known  editions  of  separate  Years 
or  groups  of  Years  which  bear  his  imprint  or  can  be  surely  attributed 
to  his  press.  .  .  .  He  is  pre-eminently  the  publisher  of  Year  Books,  and 
he  so  completely  put  them  "  in  print "  and  so  cheapened  their  price  that 
he  evidently  made  them  a  popular  and  profitable  literature." 

In  1550  an  English  lawyer's  library  of  printed  books  might  appar- 
ently have  comprised  (besides  some  Statutes  and  Year  Books)  Little- 
ton's Tenures,  The  Old  Tenures,  Statham's  Abridgement,  Fitzherbert's 
Abridgement,  Liber  Intrationum,  The  Old  Natura  Brevium,  perhaps 
a  Registrum  Brevium  (if  that  book,  printed  in  1531,  was  published  be- 
fore 1553),  Institutions  or  principal  grounds,  etc.  [1544],  Carta  feodi 
simplicis,  [Phaer's]  New  book  of  presidentes,  Diversite  de  courts,  Novae 
Narrationes,  Articuli  ad  novas  narrationes,  Modus  tenendi  curiam 
baronis,  Modus  tenendi  unum  hundredum,  Fitzherbert's  Justice  of  the 
Peace,  Perkins's  Profitable  Book,  Britton,  Doctor  and  Student.  A  great 
part  of  what  was  put  into  print  was  of  medieval  origin  and  had  been 
current  in  manuscript.  In  1600  the  following  might  have  been  added: 
Glanvill,  Bracton,  Fitzherbert's  Natura  Brevium,  Broke's  Abridgement, 
Broke's  New  Cases,  Rastell's  Entries,  Staundford's  Prerogative  and 
Pleas  of  the  Crown,  Crompton's  Justice  of  the  Peace,  Crompton's  Au- 
thority of  Courts,  West's  Symbolaeography,  TheloalPs  Digest,  Smith's 
Commonwealth,  Lambard's  Archaionomia  and  Eirenarcha,  Fulbecke's 
Direction  or  Preparative  to  the  Study  of  the  Law  [1600],  Plowden's 
Commentaries,  Dyer's  Reports  and  the  first  volume  of  Coke's  Reports 
[1600].  This  represents  a  great  advance.  Already  Fulbecke  in  his 
curious  book  (which  was  reprinted  as  still  useful  in  1829)  attempts  a 
review  of  English  legal  literature:  a  critical  estimate  of  Dyer,  Plowden, 
Staundford,  Perkins  and  other  writers.  Lambard's  revelation  of  the 
Anglo-Saxon  laws  was  not  unimportant,  for  a  basis  was  thus  laid  for 
national  boasts;  and,  but  for  the  publication  of  Glanvill,  Bracton  and 
Britton,  the  work  that  was  done  by  Coke  would  have  been  impossible. 

Were  any  books  about  Roman  law  printed  in  England  before  1600, 
except  a  few  of  Gentili's? 


202    //.     FROM    THE    1100'S    TO    THE    1800'S 

Court  of  Requests  in  which  Prof.  Smith  and  Prof.  Haddon 
had  done  justice  was  being  tried  for  its  life.  Its  .official 
defender  was,  we  observe,  Italian  by  blood  and  Parisian  by 
degree:  Dr.  Adelmare,  known  to  Englishmen  as  Sir  Julius 
Caesar.63  That  wonderful  Edward  Coke  was  loose.  The 
medieval  tradition  was  more  than  safe  in  his  hands.  You 
may  think  it  pleasant  to  turn  from  this  masterful,  masterless 
man  to  his  great  rival.  It  is  not  very  safe  to  say  what 
Thomas  More  did  not  know,  less  safe  to  say  what  was 
unknown  to  Francis  Bacon,  but  I  cannot  discover  that  either 
of  these  scholars,  these  philosophers,  these  statesmen,  these 
law  reformers,  these  schemers  of  ideal  republics,  these  chan- 
cellors of  the  realm,  these  law  lecturers,  had  Tnore  than  a 
bowing  acquaintance  with  Roman  law. 

If  Reginald  Pole's  dream  had  come  true,  if  there  had  been 
a  Reception  —  well,  I  have  not  the  power  to  guess  and  you 
have  not  the  time  to  hear  what  would  have  happened ;  but  I 
think  that  we  should  have  had  to  rewrite  a  great  deal  of 
history.  For  example,  in  the  seventeenth  century  there 
might  have  been  a  struggle  between  king  and  parliament, 
but  it  would  hardly  have  been  that  struggle  for  the  medieval, 
the  Lancastrian,  constitution  in  which  Coke  and  Selden  and 
Prynne  and  other  ardent  searchers  of  mouldering  records 
won  their  right  to  be  known  to  school-boys.  In  1610  when 
the  conflict  was  growing  warm  a  book  was  burnt  by  the 
common  hangman:  it  was  written  by  an  able  man  in  whom 
Cambridge  should  take  some  pride,  Dr.  Cowell,  our  Regius 
Professor,  and  seemed  to  confirm  the  suspicion  that  Roman 
law  and  absolute  monarchy  went  hand  in  hand.64 

The  profit  and  loss  account  would  be  a  long  affair.  I  must 
make  no  attempt  to  state  it.  If  there  was  the  danger  of 
barbarism  and  stupidity  on  the  one  side,  there  was  the  danger 
of  pedantry  on  the  other:  the  pedantry  that  endeavours  to 

"See  Mr.  Leadam's  Introduction  to  Select  Pleas  in  the  Court  of 
Requests  (Seld.  Soc.)  and  Diet.  Nat.  Biog.  s.  n.  Caesar,  Sir  Julius. 

"See  Gardiner,  Hist.  England,  1603-1642,  vol.  ii.,  pp.  66-68;  E.  C. 
Clark,  Cambridge  Legal  Studies,  pp.  74-75.  Cowell's  Institutiones  (less 
known  than  the  Interpreter)  are  an  attempt,  "  in  the  main  very  able," 
so  Dr.  Clark  says,  to  bring  English  materials  under  Roman  rubrics. 
It  is  a  book  which  might  have  played  a  part  in  a  Reception;  but  it 
came  too  late. 


6.      MAITLAND:    THE    RENAISSANCE      203 

appropriate  the  law  of  another  race  and  galvanizes  a  dead 
Corpus  Juris  into  a  semblance  of  life.  Since  the  first  of 
January  1900  the  attempt  to  administer  law  out  of  Justin- 
ian's books  has  been  abandoned  in  Germany.  The  so-called 
"  Roman-Dutch  "  law  of  certain  outlying  parts  of  the  British 
Empire  now  stands  alone,65  and  few,  I  imagine,  would  foretell 
for  it  a  brilliant  future,  unless  it  passes  into  the  hand  of  the 
codifier  and  frankly  ceases  to  be  nominally  Roman.  Let  us 
observe,  however,  that  much  had  been  at  stake  in  the  little 
England  of  the  sixteenth  century. 

In  1606  Coke  was  settling  the  first  charter  of  Virginia.66 
In  1619  elected  "  burgesses  "  fjjom  the  various  "  hundreds  " 
of  Virginia  -were  assembling,  and  the  first-born  child  of  the 
mother  of  parliaments  saw  the  light.67  Maryland  was  granted 
to  Lord  Baltimore  with  view  of  frankpledge  and  all  that  to 
view  of  frankpledge  doth  belong,  to  have  and  to  hold  in  free 
and  common  socage  as  of  the  castle  of  Windsor  in  the  county 
of  Berks,  yielding  yearly  therefor  two  Indian  arrows  of 
those  parts  on  the  Tuesday  in  Easter  week.68  The  port  and 

65  There  can  now  be  few,  if  any,  countries  outside  the  British  Empire 
in  which  a  rule  of  law  is  enforced  because  it  is  (or  is  deemed  to  be) 
a  rule  of  Roman  law.  See  Galliers  v.  Ry croft  [1901]  A.  C.  130,  for  a 
recent  discussion  before  the  Judicial  Committee  (on  an  appeal  from 
Natal)  of  the  import  of  a  passage  in  the  Digest.  Are  there  many  lands 
in  which  so  much  respect  would  be  paid  by  a  tribunal  and  for  prac- 
tical purposes  to  a  response  of  Papinian's?  I  think  not. 

86  Macdonald,  Select   Charters,   1899,  p.   1:    "The   first   draft   of   the 
charter  .  .  .  was    probably    drawn    by    Sir    John    Popham  .  .  .  but    the 
final   form  was  the  work   of  Sir   Edward  Coke,  attorney   general,  and 
Sir  John  Dodderidge,  solicitor  general." 

87  Doyle,   The  English  in  America,  vol.  i.,  p.  211:    "On  the  30th  of 
July,  1619,  the  first  Assembly  met  in  the  little  church  at  Jamestown. 
A  full  report  of  its  proceedings  still  exists  in  the  English  Record  Office 
(Colonial  Papers,  July  30,  1619)."     An  abstract  is  printed  in  Calendar 
of  State  Papers,  Colonial,  1574-1660,  p.  22. 

88  Charter  of  Maryland,  1632,  Macdonald,  Select  Charters,  p.  53.     In 
1620  the  grant  to  the  Council  of  New  England  (Ibid.,  p.  23)  referred  to 
the  manor  of  East  Greenwich  and  reserved  by  way  of  rent  a  fifth  part 
of  the  ore  of  gold  and  silver.     The  grant  of  Carolina    (Ibid.,  p.   121) 
reserved  a  rent  of  twenty  marks  and  a  fourth  of  the  ore.    The  grant  of 
New  Netherlands  to  the  duke  of  York   (Ibid.,  p.  136)   reserved  a  rent 
of  forty  beaver  skins,  if  demanded.    The  grant  of  Pennsylvania  to  Will- 
iam Penn  speaks  of  the  Castle  of  Windsor  and  reserves  two  beaver  skins 
and  a  fifth  of  the  gold  and  silver  ore  (Ibid.,  p.  185).    Georgia  was  holden 

-as  of  the  honour  of  Hampton  Court  in  the  county  of  Middlesex  at  a 
rent  of  four  shillings  for  every  hundred  acres  that  should  be  settled 
(Ibid.,  p.  242). 


204     //.     FROM    THE    1100'S    TO    THE    1800'S 

island  of  Bombay  in  one  hemisphere,69  and  in  another  Prince 
Rupert's  land  stretching  no  one  knew  how  far  into  the  frozen 
north  were  detached  members  of  the  manor  of  East  Greenwich 
in  the  county  of  Kent.70  Nearly  twenty-five  hundred  copies  of 
Blackstone's  Commentaries  were  absorbed  by  the  colonies  on 
the  Atlantic  seaboard  before  they  declared  their  independence. 
James  Kent,  aged  fifteen,  found  a  copy,  and  (to  use  his  own 
words)  was  inspired  with  awe;  71  John  Marshall  found  a  copy 
in  his  father's  library ; 72  and  the  common  law  went  straight 
to  the  Pacific.73 

••Charter  of  1669  printed  among  Charters  granted  to  the  East  India 
Company  (no  date  or  publisher's  rtfeme) :  "  to  be  holden  of  us,  our  heirs 
and  successors  as  of  the  manor  of  East  Greenwich  in  the  county  of 
Kent,  in  free  and  common  soccage  and  not  in  capite  nor  by  knight's 
service,  yielding  and  paying  therefor  to  us,  our  heirs  and  successors  at 
the  Custom  House,  London,  the  rent  or  sum  of  ten  pounds  of  lawful 
money  of  England  in  gold  on  the  thirtieth  day  of  September  yearly 
for  ever." 

70  Charter  of  1670  incorporating  the  Hudson's  Bay  Company,  printed 
by  Deckles  Wilson,  The  Great  Company,  vol.  ii.,  pp.  318,  327:  "yielding 
and  paying  yearly  to  us  ...  two  elks  and  two  black  beavers,  whenso- 
ever and  as  often  as  we  our  heirs  and  successors  shall  happen  to  enter 
into  the  said  countries,  territories  and  regions  hereby  granted." 

"  Thayer,  The  Teaching  of  English  Law  at  Universities  in  Harvard 
Law  Review,  vol.  ix.,  p.  170:  "'I  retired  to  a  country  village,'  Chan- 
cellor Kent  tells  us  in  speaking  of  the  breaking  up  of  Yale  College  by 
the  war,  where  he  was  a  student  in  1779,  'and,  finding  Blackstone's 
Commentaries,  I  read  the  four  volumes.  .  .  .  The  work  inspired  me  at 
the  age  of  fifteen  with  awe,  and  I  fondly  determined  to  be  a  lawyer.' 
.  .  .  '  There  is  abundant  evidence,'  if  we  may  rely  upon  the  authority 
of  Dr.  Hammond,  whose  language  I  quote,  '  of  the  immediate  absorp- 
tion of  nearly  twenty-five  hundred  copies  of  the  Commentaries  in  the 
thirteen  colonies  before  the  Declaration  of  Independence.' " 

"Thayer,  John  Marshall,  1901,  p.  6:  "When  Marshall  was  about 
eighteen  years  old  he  began  to  study  Blackstone.  .  .  .  He  seems  to  have 
found  a  copy  of  Blackstone  in  his  father's  house.  .  .  .  Just  now  the  first 
American  edition  was  out  (Philadelphia,  1771-2),  in  which  the  list  of 
subscribers,  headed  by  the  name  of  '  John  Adams,  barrister  at  law, 
Boston,'  and  also  that  of  '  Captain  Thomas  Marshall,  Clerk  of  Dun- 
more  County.'" 

"It  may  be  interesting  to  notice  that  in  1856,  and  perhaps  even 
in  1871,  Sir  H.  Maine  believed  that  the  Code  of  Louisiana  ("of  all 
republications  of  Roman  law  the  one  which  appears  to  us  the  clearest, 
the  fullest,  the  most  philosophical  and  the  best  adapted  to  the  exigen- 
cies of  modern  society")  had  a  grand  destiny  before  it  in  the  United 
States.  "  Now  it  is  this  code,  and  not  the  Common  Law  of  England 
which  the  newest  American  States  are  taking  for  the  substratum  of 
their  laws.  .  .  .  The  Roman  law  is,  therefore,  fast  becoming  the  lingua 
franca  of  universal  jurisprudence."  (Maine,  Roman  Law  and  Legal 
Education,  1856,  reprinted  in  Village  Communities,  ed.  3,  pp.  360-1.)  ' 
Nowadays  this  hope  or  fear  of  a  Reception  of  Roman  law  in  the  United 
States  seems,  so  I  am  given  to  understand,  quite  unfounded.  See  e.  g. 


6.     MAITLAND:    THE    RENAISSANCE      205 

A  hundred  legislatures  —  little  more  or  less  —  are  now 
building  on  that  foundation:  on  the  rock  that  was  not  sub- 
merged. We  will  not  say  this  boastfully.  Far  from  it. 
Standing  at  the  beginning  of  a  century  and  in  the  first  year 
of  Edward  VII,  thinking  of  the  wide  lands  which  call  him 
king,  thinking  of  our  complex  and  loosely-knit  British  Com- 
monwealth, we  cannot  look  into  the  future  without  serious 
misgivings.  If  unity  of  law  —  such  unity  as  there  has  been 
—  disappears,  much  else  that  we  treasure  will  disappear  also, 
and  (to  speak  frankly)  unity  of  law  is  precarious.  The 
power  of  the  parliament  of  the  United  Kingdom  to  legislate 
for  the  colonies  is  fast  receding  into  the  ghostly  company  of 
legal  fictions.  Men  of  our  race  have  been  litigious;  the 
great  Ihering  admired  our  litigiousness ; 74  it  is  one  of  our 
more  amiable  traits ;  but  it  seems  to  me  idle  to  believe  that 
distant  parts  of  the  earth  will  supply  a  tribunal  at  West- 
minster with  enough  work  to  secure  uniformity.  The  so- 
called  common  law  of  one  colony  will  swerve  from  that  of 
another,  and  both  from  that  of  England.  Some  colonies  will 
have  codes.75  If  English  lawyers  do  not  read  Australian 
reports  (and  they  cannot  read  everything),  Australian  law- 
yers will  not  much  longer  read  English  reports. 

Still  the  case  is  not  yet  desperate.  Heroic  things  can  be 
done  by  a  nation  which  means  to  do  them:  as  witness  the 

J.  F.  Dillon,  Laws  and  Jurisprudence  of  England  and  America,  1894, 
p.  155:  "the  common  law  [in  distinctiop  from  the  Roman  or  civil  law] 
is  the  basis  of  the  laws  of  every  State  and  Territory  of  the  Union,  with 
comparatively  unimportant  and  gradually  waning  exceptions." 

74  Ihering,  Der  Kampf  urn's  Recht,  ed.   10,  pp.  45,  69:    "  Ich  habe 
bereits  oben  das  Beispiel  de's  kampflustigen  Englanders  angefuhrt,  und 
ich  kann  hier  nur  wiederholen,  was   ich  dort  gesagt:    in   dem   Gulden, 
um  den  er  hartnackig  streitet,  steckt  die  politische  Entwicklung  Eng- 
lands.     Einem  Volke,  bei  dem  es   allgemeine   Uebung  ist,  dass  Jeder 
auch    im    Kleinen    und    Kleinsten    sein    Recht    tapfer    behauptet,    wird 
Niemand  wagen,  das   Hochste,  was  es   hat,  zu  entreissen,  und   es   ist 
daher  kein  Zufall,  dass  dasselbe  Volk  des  Alterthums,  welches  im  In- 
nern    die    hochste    politische    Entwicklung    und    nach    Aussen    hin    die 
grosste    Kraftentfaltung    aufzuweisen   hat,   das   romische,   zugleich   das 
ausgebildetste  Privatrecht  besass." 

75  Thus  in  particular  Queensland  in  1899  enacted  a  criminal  code  of 
707  sections.     See  Journal  of  the  Society  of  Comparative  Legislation, 
New   Ser.,  vol.   vi.,  pp.   555-560:    "The   precedents   utilised  in   framing 
the  Code  were  the   [in  England  abortive]   draft  English  codes  of  1879 
and  1880,  the  Italian  Penal  Code  of  1888,  and  the  Penal  Code  of  the 
State  of  New  York."    See  also  Ilbert,  Legislative  Methods,  p.  155. 


206    //•     FROM    THE    1100' S    TO    THE    1800'S 

mighty  effort  of  science  and  forbearance  which  in  our  own 
time  has  unified  the  law  of  Germany,  and,  having  handed  over 
the  Corpus  Juris  to  the  historians,  has  in  some  sort  undone 
the  work  of  the  Reception.70  Some  venerable  bodies  may 
understand  the  needs  of  the  time,  or,  if  I  may  borrow  a 
famous  phrase,  "  the  vocation  of  our  age  for  jurisprudence 
and  legislation."  Our  parliament  may  endeavour  to  put  out 
work  which  will  be  a  model  for  the  British  world.  It  can  still 
set  an  example  where  it  can  no  longer  dictate,  and  at  least 
it  might  clear  away  the  rubbish  that  collects  round  every 
body  of  law.  To  make  law  that  is  worthy  of  acceptance  by 
free  communities  that  are  not  bound  to  accept  it,  this  would 
be  no  mean  ambition.  Nihil  aptius,  nihil  efficacius  ad  plures 
provincias  sub  uno  imperio  retinendas  et  fovendas.77  But  it 
is  hardly  to  parliament  that  our  hopes  must  turn  in  the  first 
instance.  Certain  ancient  and  honourable  societies,  proud  of 
a  past  that  is  unique  in  the  history  of  the  world,  may  become 
fully  conscious  of  the  heavy  weight  of  responsibility  that  was 

78  Some  information  in  English  about  the  new  German  code  will  be 
found  in  articles  by  Mr.  E.  Schuster,  Law  Quarterly  Review,  vol.  xii., 
p.  17,  and  Journal  of  the  Society  of  Comparative  Legislation,  Old  Series, 
vol.  i.,  p.  191.  Despite  the  careful  exclusion  of  almost  all  words  derived 
from  the  Latin  (except  Hypothek,  which  happens  to  be  Greek),  the  new 
law  book  may  look  Roman  to  an  Englishman;  but  then  it  does  not 
look  Roman  to  Gennans.  The  following  sentences  are  taken  from  a 
speech  delivered  in  the  Reichstag  (Mugdan,  Materialien  zum  biiraer- 
lichen  Oesetzbuch,  vol.  i.,  pp.  876-7) :  "  In  dieser  Beziehung  ist  vor 
Allem  der  Vorwurf  gegen  den  Entwurf  erhoben,  er  enthalte  materiell 
kein  deutsches  Recht.  .  .  .  Selten  ist  ein  Vorwurf  unbegriindeter  gewe- 
sen.  .  .  .  Das  Sachenrecht  ist  von  A  bis  Z  durchaus  deutsches  Recht.  .  .  . 
Was  dann  den  Begriff  des  Besitzes  betrifft,  von  der  ganzen  romischen 
Besitztheorie  ist  nichts  ubrig  geblieben.  .  .  .  Der  allgemeine  Theil  des 
Obligationenrechtes  ist  natiirlich  romischen  Ursprunges.  .  .  .  Kommen 
wir  aber  zu  den  einzelnen  speziellen  Rechtsgeschaften,  so  treffen  wir 
auch  da  sofort  wieder  deutsches  Recht.  .  .  .  Auch  das  Familienrecht  ist 
durchaus  deutschrechtlich.  .  .  .  Dann  ist  das  Erbrecht  durch  und  durch 
deutschrechtlichen  Ursprunges.  ..."  The  supposition  that  codifica- 
tion means  romanization  is  baseless;  it  may  mean  deromanization.  But 
the  great  lesson  to  be  learnt  by  Englishmen  from  the  German  Code  is 
that  a  democratically  elected  assembly,  which  is  for  many  purposes 
divided  into  bitterly  contending  fractions,  can  be  induced  to  show  a 
wonderful  forbearance  when  uniformity  of  law  is  to  be  attained. 

"Molinaeus  (Charles  Du  Moulin),  Oratio  de  concordia  et  unione 
consuetudinum  Franciae,  in  Opera  (1681),  vol.  ii.,  p.  691:  "  Mihi  quoque 
videtur  nihil  aptius,  nihil  efficacius  ad  plures  nrovincias  sub  eodem 
imperio  retinendas  et  fovendas,  nee  fortius  nee  honestius  vinculum  quam 
communio  et  conformitas  eorundem  morum  legumve  utilium  et  aequa- 
bilium." 


6.   MAITLAND:    THE    RENAISSANCE        207 

assumed  when  English  law  schools  saved,  but  isolated,  English 
law  in  the  days  of  the  Reception.  In  that  case,  the  glory  of 
Bourges,  the  glory  of  Bologna,  the  glory  of  Harvard  may 
yet  be  theirs.78 

78  The  name  of  Harvard  is  here  mentioned  without  prejudice  to  the 
just  claims  of  any  other  American  university;  but  the  Harvard  Law 
Review,  edited  by  a  committee  of  students,  is  a  journal  of  which  any 
school  might  be  proud. 


7.  ROMAN  LAW  INFLUENCE  IN  CHANCERY, 
CHURCH  COURTS,  ADMIRALTY,  AND  LAW 
MERCHANT » 


1.    Roman  Law  in  Coke 

SIB  E.  COKE  in  his  Institutes,  (themselves  Roman  in 
name),  takes  a  decided  position  as  to  the  authority  of  the 
Civil  law.  He  says :  "  Our  common  laws  are  aptly  and  prop- 
erly called  the  laws  of  England,  because  they  are  appropri- 
ated to  this  kingdom  of  England  .  .  .  and  have  no  depend- 
ency upon  any  forreine  law  whatever,  no,  not  upon  the  Civil 
or  Canon  law  other  than  in  cases  allowed  by  the  Laws  of 
England  .  .  .  therefore  foreign  precedents  are  not  to  be 
objected  against  us,  because  we  are  not  subject  to  foreign 
laws  "  3  —  and  again  "  it  is  worthy  of  consideration  how  the 
laws  of  England  are  not  derived  from  any  foreign  law,  either 
canon  or  civil  or  other,  but  a  special  law  appropriated  to  this 
kingdom."  4  And  in  a  side-note  he  remarks :  "  Nota  differen- 
tiam  .  .  .  inter  malum  in  se  against  the  Common  law,  and 
malum  prohibitum  by  the  Civil  or  Canon  law,  whereof  the 
judges  of  the  Common  law  in  these  cases  take  no  notice"  5 
Sir  Edward  Coke  indeed  had  not  a  high  opinion  of  the  Civil 

1  These  extracts  are  taken  from  a  treatise  on  "  The  Influence  of  the 
Roman  Law  on  the  Law  of  England,"  Part  II,  cc.  VI,  X,  XI,  XII,  XIII, 
XIV,  and  Conclusion  (1885,  Cambridge,  University  Press,  being  the 
Yorke  Prize  Essay  for  1884). 

2B.  A.  Trinity 'College  (Cambridge)  1881;  M.  A.  London  University; 
four  times  Yorke  Prize  Essayist;  LL.  B.  Cambridge;  Barrister  of  the 
Middle  Temple  1882;  at  one  time  Professor  of  Constitutional  Law  and 
History  in  University  College,  London. 

Other  Publications:  Law  of  Copyright,  1883;  Law  of  Charter 
Parties  and  Bills  of  Lading,  1886;  Merchant  Shipping  Act,  1894. 

'Coke,  ii.  98.        Mil.  100.        Biii.  153. 

208 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   209 

law.  In  his  Prooemium  to  the  Second  Institute,  he  observes: 
"  Upon  the  text  of  the  Civil  law  there  be  so  many  glosses  and 
interpretations,  and  again  upon  those  so  many  commentaries, 
and  all  these  written  by  doctors  of  equal  degree  and  authority, 
and  therein  so  many  diversities  of  opinion  as  they  do  rather 
increase  than  resolve  doubts  and  uncertainties,  and  the  pro- 
fessors of  that  noble  science  say  that  it  is  like  a  sea  of 
waves ; "  and  with  this  he  contrasts  the  certainty  of  the 
Common  law ;  "  Statio  bene  fida  perltls." 

This  opinion  does  not  hinder  him  from  occasionally  re- 
ferring to  the  Civil  law,  though  not  with  great  accuracy. 
He  comments  with  approval  on  Littleton's  statement  that  the 
English  law  is  contrary  to  the  Civil  law  in  which  partus 
sequltur  ventrem,  saying,  "  true  it  is,  for  by  that  law " 
(stating  the  law),  "  both  of  which  cases  are  contrarie  to  the 
Law  of  England."  He  makes  the  curious  assertion  that, 
"  in  prohibiting  the  lineal  ascent  in  inheritance,  the  Common 
law  is  assisted  with  the  law  of  the  Twelve  Tables,"  2  which 
seems  entirely  inaccurate.  He  notes  the  differences  in  the 
laws  as  to  guardianship,  already  alluded  to,3  and  says  that 
the  law  of  England  is  contrary  to  the  Civil  law,  which  "  est 
quasi  agnum  lupo  committere  ad  devorandum;  "  yet  he  cites 
the  very  rule  of  the  Civil  law,  "  qui  sentlt  commodum  debet 
et  onus  sentire,"  in  support  of  the  position  that  the  owners 
of  private  chapels  should  repair  them.4  Lord  Macclesfield 
strongly  disapproved  of  the  English  rule,  deeming  it  "  to 
have  prevailed  in  barbarous  times,  and  a  cruel  and  barbarous 
presumption."  5 

Coke  cites  very  largely  from  Bracton,  and  some  of  the 
passages  are  those  directly  derived  from  Roman  sources ;  6 
as  far  as  I  can  find,  he  only  expressly  refers  to  the  Corpus 

li.  122,  b,  123. 

»i.  11,  a. 

8  i.  88,  b.  Blackstone,  i.  461. 

4  Coke,  ii.  489. 

6  2  P.  Wms.  264,  9  Mod.  142.    Hargreaves'  notes,  63. 

•e.g.  Bracton's  Roman  def.  of  -actio  (Coke,  ii.  39,  Br.  98,  b)  ;  the 
division  of  actions  into  real,  personal,  mixed  (C.  ii.  21,  286;  Br.  f.  101, 
b)  ;  on  monsters  (C.  i.  7,  b;  Br.  f.  5);  de  ventro  inspiciendo  (C.  i.  8, 
b;  Br.  ff.  69-71);  on  treasure  trove  (C.  iii.  132;  Br.  f.  10,  119,  b) ; 
also  cf.  C.  i.  36,  a.  with  Br.  ff.  33,  b,  34. 


210     //•     FROM    THE    1100'S    TO    THE    1800'S 

Juris  twice.  *  The  rule  as  to  the  half-blood,  which  has  been 
attributed  to  a  misunderstanding  of  the  Civil  law,  he  treats 
as  settled.2  He  states  rather  curiously  and  inaccurately  that 
coparcenery  was  called  in  the  ancient  books  of  law  "  familia 
herciscunda,"  8  which  was  a  tenure ;  and  compares  the  Com- 
mon Civil  and  Canon  laws  on  kinship,  saying,  "  thus  much 
of  the  Civil  and  Canon  laws  is  necessary  to  the  knowledge  of 
the  Common  law  on  this  point."  He  of  course  notices  the 
discrepancy  between  the  Common  law  and  the  "  laws  of  Holy 
Church,  or  Canon  law,"  as  to  legitimation  by  subsequent  mar- 
riage. Speaking  of  banishment  he  remarks,  "  if  the  husband 
by  act  of  Parliament  have  judgment  to  be  exiled  for  a  time, 
which  some  call  a  relegation,  that  is  no  civil  death ;  "  4  this 
is  clearly  the  Roman  "  relegatio  "  or  exile,  which  involved  no 
loss  of  status.  He  refers  to  the  agreement  of  the  Civil  and 
Common  laws  in  forbidding  distress  on  beasts  of  the  plough,5 
and  cites  Seneca  as  to  their  agreement  in  the  punishment  of 
rape.  He  uses  the  phraseology  of  peremptory  and  dilatory 
exceptions,6  though  bargain  and  sale,  (in  the  Institutes  a 
consensual  contract),  is  described  as  a  real  one.7  The  respite 
of  a  pregnant  woman  under  sentence  till  she  is  delivered,  for 
which  Bracton  had  cited  Roman  law,  is  restated,8  but  some 
of  "Bracton's  Roman  incorporations  are  not  so  fortunate,  as 
where  Coke  says  "  We  remember  not  that  we  have  read  in  any 
book  of  the  legitimation  or  adoption  of  an  heir,  but  only  in 
Bracton,9  and  that  to  little  purpose."  Coke  ascribes  the  in- 
troduction of  the  rack  to  the  Civil  law,10  as  the  rack  or 
brake  allowed  in  many  cases  by  the  Civil  law,  whereas  all  tor- 
tures and  torments  of  parties  accused  were  directly  against 
the  Common  law  of  England."  n 

In  his  Fourth  Institute  Coke  states  to  what  extent  the  Civil 

I  C.  ii.  658:    Dig.  48,  19,  18,  where  he  misquotes  meretur  for  patitur: 
the  quotation  is  characteristically  used  to  resist  a  claim  of  jurisdiction 
by  the  Ecclesiastical  Courts.    Coke  also  says  of  the  Regiam  Majestatem, 
"so  called  because  it  beginneth  a*  Justinian's  Institutes  do,  with  these 
words,"  which  is  incorrect,  as  the  words  are  Imperatoriam  Majestatem. 

*C.  i.  14,  a,  191,  a.  note.        8C.  i.  164,  b.        4C.  i.  133,  a. 

6 C.  ii.  132.        « C.  ii.  426.         'C.  ii.  672.        8 C.  iii.  17.        •  Br.  f.  63,  b. 

10  C.  iii.  35,  cf.  Step.  Hist.  C.  L.  i.  222. 

II  Cf.  also,  C.  i.  41,  a;    Br.  f.  311.    C.  i.  47,  b.  on  traditio.    C.  i.  55,  a, 
on  possessio  precaria.    C.  ii.  198,  441,  on  liability  of  heirs.    C.  ii.  591,  on 
ultimum  suppJicium,  cf.   Dig.  48,   19.     C.   ii.   391;    melior   est   conditio 


7.     SCKUTTON:  ROMAN  LAW  INFLUENCE    211 

and  Canon  law  had  force  in  England.  It  is  the  lex  et  con- 
suetudo  parliamenti,  he  says,  that  all  weighty  matters  in 
Parliament  be  determined  by  the  course  of  the  Parliament, 
and  "  not  by  the  Civil  law,  nor  yet  by  the  Common  laws  of 
this  realm."  The  Court  of  Admiralty  is  always  spoken  of 
as  "  proceeding  according  to  the  Civil  Law,"  2  though  Coke 
gives  no  reasons  for  such  a  procedure.  The  Court  of 
Chivalry  before  the  Constable  and  Marshal  "  proceeds  ac- 
cording to  the  customs  and  usages  of  that  Court,  and,  in 
cases  omitted,  according  to  the  Civil  law,  secundum  leges 
armorum."3  In  a  case  as  to  ambassadors,  the  Committee  of 
the  Privy  Council  heard  the  "counsel  learned  in  the  Civil  and 
Common  laws ; "  *  and  Coke  says  of  one  of  their  decisions 
"  and  this  also  agreeth  with  the  Civil  law." 4  As  to  the 
Ecclesiastical  Courts,  "  which  proceed  not  by  the  rules  of  the 
Common  Law,"  Coke  writes  with  some  acerbity,  "  that  the 
King's  laws  of  this  realm  do  bound  the  jurisdiction  of  Ecclesi- 
astical Courts."6  The  Convocation  proceed  according  to 
"  legem  divinam  et  canones  strictae  ecclesiae"  the  ecclesias- 
tical courts  generally  by  "  the  laws  of  Christ."  6  As  to  the 
authority  of  this  law  in  England,  Coke  is  very  decided :  "  all 
canons  and  constitutions  made  against  the  laws  of  the  realm 
are  made  void :  "  "  all  canons  which  are  against  the  preroga- 
tive of  the  king,  the  Common  law,  or  custom  of  the  realm  are 
of  no  force."  7 

I  have  only  noticed  two  cases  in  which  the  English  Common 
law,  as  stated  by  Coke,  appears  to  have  been  modified  by  the 
Civil  law  otherwise  than  through  Bracton.  These  are,  first, 
the  law  as  to  discontinuance,8  or  the  alienation  made  by 

possidentis.  C.  ii.  360,  573,  et  Br.  passim  "  nihil  est  tarn  conveniens 
naturali  aequitati  unumquodque  dissolvi  eo  ligamine,  quo  llgatum  est." 
C.  iii.  2,  Crimen  laesae  majestatis.  C.  iii.  168,  Crimen  falsi.  Coke  also 
cites  Bracton's  definition  of  theft. 

1  C.  iv.  14.       *  C.  iv.  134:   Duck,  ii.  8,  3,  24. 

*  C.  iv.  125;    Hargreaves'  note  to  i.  74,  a,  b.     Duck,  ii.  8,  3,  12-22. 
"  Causas  ex  Jure  Civili  Romanorum  et  consuetndinibus  armorum  et  non 
ex  Jure  Municipali  Anglorum  esse  dijudicandas." 

*  C.  iv.  153.        5C.  iv.  321,  322. 

6  C.  ii.  487:  cf.  Duck,  ii.  8,  3,  26,  et  seq.  De  his  omnibus  in  hoc  foro 
jus  dicitur  ex  Jure  Civili,  cui  porro  accessit  Jus  Canonicum.  Ex  quibus 
omnibus  constituitur  Lex  quam  nostrates  appellant  Ecclesiasticam  .  .  . 
Lex  Civile  in  hoc  foro  Lex  terrae  appellatur. 

'  C.  ii.  647,  652.        8 C.  i.  325,  a;  i.  272. 


212     //.     FROM    THE    1100'S    TO    THE    1800'S 

tenant  en  autre  droit,  by  which  the  remainderman  is  driven 
to  an  action;  the  rules  as  to  this  bear  some  analogy  to  the 
civilian  doctrines  of  usurpatio  possessionis,  and  Coke  himself 
in  one  place  uses  the  term  "  usurpations  "  in  connexion  with 
discontinuances.1  Secondly,  the  Roman  law  as  to  collatio 
bonorum,  2  by  which  emancipated  children,  wishing  to  share 
in  intestacy,  must  bring  their  property  into  the  stock  to  be 
divided,  seems  to  have  suggested  the  custom  of  London  as  to 
"  hotchpot,"  and  part  of  the  subsequent  Statute  of  Distribu- 
tions,3 and  Coke  expressly  says,  "  this  is  that  in  effect  which 
the  civilians  call  collatio  bonorum."  4 

A  study  of  Coke's  Institutes  suggests  that  the  Common 
lawyers  of  the  time  expressly  repudiated  the  Civil  law  as  an 
authority  in  the  King's  courts,  or  even  as  the  parent  of  the 
existing  Common  law.  Coke  occasionally  notes  the  agreement 
or  disagreement  of  the  two  laws,  but  with  such  inaccuracy 
as  to  show  that  his  own  knowledge  of  the  Civil  law  was  slight. 
The  working  out  of  an  Equitable  Jurisdiction,  and  the  deci- 
sions of  the  Ecclesiastical  and  Admiralty  Courts  were  build- 
ing up  systems  largely  of  Civilian  origin ;  but  in  the  Common 
law,  the  influence  of  Roman  law  has  rather  retrograded  than 
advanced  since  the  time  of  Bracton.  .  .  . 


Summary  of  Roman  Law  in  Text-writers 

We  have  thus  dealt  with  the  position  with  regard  to  the 
Roman  Law  occupied  by  leading  text-writers  and  authorities 
from  the  time  of  Bracton.  Glanvil  is  comparatively  free  from 
any  Roman  influence.  Bracton  has  incorporated  into  his 
book  substantial  portions  of  Roman  matter,  which  are  repro- 
duced by  Fleta,  and  in  a  less  intelligent  way  by  Britton. 
These  Roman  incorporations  are  cited  without  comment  by 
Staunford,  and  are  used  by  Cowell  to  show  the  similarity  of 
the  two  laws.  Coke  also  cites  them,  without  any  allusion  to 
their  Roman  character,  while  he  claims  no  authority  in  the 
realm  for  the  Roman  Law  and  is  indeed  a  vigorous  advocate 

1  C.  ii.  272. 

*  Dig.  37,  6.    Cod.  6,  20.    Hunter,  R.  L.  p.  663. 

•  22  and  23  Car.  II.  c.  10  §  5.      «  C.  i.  177,  a. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   213 

of  the  supremacy  of  the  Courts  of  Common  Law.  Hale 
clearly  states  the  relative  position  of  Common,  Civil,  and 
Canon  Laws,  defining  the  limits  of  the  two  latter,  and  the 
source  of  their  authority.  Lastly  Blackstone,  following 
Hale,  recognizes  the  Roman  origin  of  parts  of  our  Law,  in- 
cluding the  passages  in  Bracton,  and  while  he  recognizes  it, 
adopts  them. 

Perception  of  the  Roman  elements  in  Bracton  leads  to  a 
discussion  as  to  his  authority  in  the  law,  which  results  in  his 
being  generally  accepted  as  binding,  if  no  contrary  decisions 
or  customs  can  be  produced.  And  while  the  English  Courts 
recognize  no  authority  in  the  Roman  Law,  as  such,  they  are 
yet  ready  to  listen  to  citations  from  it  in  all  cases  where  Eng- 
lish authorities  cannot  be  found  in  point,  or  where  the  prin- 
ciples of  the  English  and  Roman  Laws  appear  to  be  similar. 
Thus  in  Acton  v.  Blundell  (1843),1  where  the  question  was 
as  to  rights  in  a  subterranean  water  course,  the  Digest  was 
fully  cited  and  commented  on  by  counsel,  Maule,  J.  interven- 
ing with  the  remark,  "  it  appears  to  me  that  what  Marcellus 
says  is  against  you."  Tindal,  C.  J.,  in  delivering  judgment, 
said  "  The  Roman  Law  forms  no  rule  binding  in  itself  upon 
the  subjects  of  these  realms ;  but  in  deciding  a  case  upon 
principle,  where  no  direct  authority  can  be  cited  from  our 
books,  it  affords  no  small  evidence  of  the  soundness  of  the 
conclusion  to  which  we  have  come,  if  it  proves  to  be  supported 
by  that  law,  the  fruit  of  the  researches  of  the  most  learned 
men,  the  collective  wisdom  of  ages,  and  the  groundwork  of 
the  municipal  law  of  most  of  the  countries  in  Europe.  The 
authority  of  one  at  least  of  the  learned  Roman  lawyers  ap- 
pears decisive  upon  the  point  in  favour  of  the  defendants." 

The  authority  of  Roman  Law  in  the  Common  Law  Courts 
cannot  be  put  higher  than  this,  or  be  better  expressed  than 
in  these  words. 

2.  Roman  Law  in  the  Chancery 

While  the  judges  of  the  Common  Law  Courts  after  the 
fourteenth  century  recognized  no  authority  in  the  Civil  Law, 

M2  M.  and  W.  324,  353;  see  Warren's  Law  Studies,  732,  note,  for  an 
account  of  the  inner  history  of  the  case  by  one  of  the  counsel  engaged. 


214    //.     FROM    THE    1100'S   TO    THE    1800'S 

and  .the  English  people  were  led  by  the  financial  exactions  of 
the  Papal  Court,  and  the  controversies  of  the  Reformation, 
to  regard  with  suspicion  and  dislike  everything  savouring  of 
Rome,  three  important  courts  in  the  kingdom  were  largely 
influenced  by  the  Civil  Law,  if  their  procedure  was  not  en- 
tirely derived  from  it.  These  were  the  Court  of  Chancery,  the 
Court  of  Admiralty,  and  the  Ecclesiastical  Courts.1  The 
Court  of  the  Constable  and  Marshal  also  proceeded  according 
to  the  Civil  Law : 2  "  causas  ex  jure  civili  Romanorum  et  con- 
suetudinibus  armorum,  et  non  ex  jure  municipali  Anglorum 
esse  dijudicandas,"  and  Duck  also  states  that  the  Universities 
of  Oxford  and  Cambridge  proceeded  according  to  the  civil 
law :  "  dijudicant  per  jus  civile  et  secundum  juris  civilis  for- 
mam."  3  But  these  latter  are  of  small  importance. 

The  Court  of  Chancery  originates  in  the  position  of  the 
king  as  the  fountain  of  justice.4  To  him  petitions  were  ad- 
dressed by  suppliants  who  conceived  themselves  wronged  by 
the  Common  Law,  or  who  found  no  remedy  for  the  injury 
they  complained  of.  Difficult  and  novel  points  arising  in  the 
Common  Law  Courts  were  also  reserved  by  the  judges  for  the 
consideration  of  the  king  in  Council.  As  the  Chancellor  was 
always  in  attendance  on  the  king,  the  petitions  for  royal  grace 
and  favour  were  entrusted  to  him,  first  for  custody,  and  ulti- 
mately for  hearing.  Under  Edward  III.  the  Chancellor's  tri- 
bunal assumed  a  definite  and  separate  character,  and  petitions 
for  grace  began  to  be  directly  addressed  to  him  instead  of 
coming  indirectly  into  his  hands.  From  1358,  such  transac- 
tions were  recognized  as  his  proper  province,  and  the  power- 
ful and  complicated  machinery  of  his  Equitable  Jurisdiction 
began  to  grow. 

There  were  reasons  why  its  growth  should  be  on  Roman 
lines.  Several  lay  Chancellors  had  been  appointed  in  the 
reign  of  Edward  III.,  probably  in  consequence  of  the  petition 
of  the  Parliament  that,  as  ecclesiastics  were  not  amenable  to 
the  laws,  only  lay  persons  might  in  future  be  appointed 
Chancellor.6  But  every  Chancellor  from  1380  to  1488  was  a 

1  Sub.  C.  xii.  Eccl.  Courts;    C.  xiii.  Admiralty  Courts. 

*  Duck,  ii.  8,  3,  12,  22.        8  Duck,  ii.  8,  3,  30. 
4  Stubbs,  i.  60S,  604  note.    ii.  268. 

•  Spence,  i.  340.     R.  Parning,  1341.    Thorpe,  Knivet,  1372. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   215 

clerk ;  until  the  end  of  Wolsey's  Chancellorship  in  1530  only 
a  few  lay  holders  of  the  office  are  found,  and  up  to  that  year 
160  Ecclesiastics  had  held  the  office. 1  In  this  clerical  prepon- 
derance, the  advantages  of  the  Civil  law,  familiar  to  the 
Chancellors  by  their  early  training,  and  as  the  system  in  use 
in  the  ecclesiastical  Courts,  are  obvious. 

But  the  laws  of  Rome  had  a  further  foothold  in  the 
Chancery.  There  were  12,  afterwards  6,  Clerks  de  prima 
forma  2  and  Masters  of  the  Chancery,  who  "  are  assistants 
in  the  Court  to  show  what  is  the  Equity  of  the  Civil  law,  and 
what  is  Conscience."3  Down  to  the  time  of  Lord  Bacon 
some  of  the  Masters  learned  in  the  Civil  law  sat  upon  the 
Bench  with  the  Chancellor  to  advise  him,  if  necessary.  The 
author  of  the  "  Treatise  on  the  Masters  "  states  that  "  the 
greater  part  have  always  been  chosen  men  skilful  in  the  Civil 
and  Canon  laws,"  in  order  that  the  decisions  of  the  Chancellor 
may  accord  with  "  Equity,  jus  gentium,  and  the  laws  of 
other  nations,"  seeing  that  a  number  of  matters  came  before 
the  Chancellor  "  which  were  to  be  expedited  not  in  course  of 
common  law,  but  in  course  of  civil  or  canon  law."4  And 
though  the  Chancellors  became  laymen  and  decided  without 
reference  to  the  Masters,  their  system  was  still  largely  clerical 
and  Roman.  Under  Charles  I.  it  was  ordered  that  half  the 
masters  in  Chancery  should  always  be  Civil  lawyers,  and  that 
no  others  should  serve  the  king  as  Masters  of  Request. 
Duck,5  writing  in  1678  says:  "  Judicia  apud  Anglos,  in 
Curiis  quae  non  ex  mero  jure  Anglicano,  sed  ex  aequo  et  bono 
exercentur,  cum  jure  civili  Romanorum  plurimum  conveniunt; 
quarum  suprema  Canc\ellaria  prima  est.  .  .  .  Cancellarii  au~ 
tern  feres  omnes  fuerunt  Episcopi  aut  Clerici,  plerumque 
legum  Romanarum  periti  usque  ad  Henricum  VIII.  quo  D. 

1  Spence,  i.  340-7,  356  note. 

*  Apparently   a  term   of   Roman   origin.      (Hargreaves,  Law   Tractt 
(1787),  p.  296.)     The  conferring  of  the  office  by  placing  a  cap  on  the 
head  is  compared  by  the  author  of  this  Tract,   (probably  a  master  in 
Chancery,  writing  about  1600),  to  the  conferring  of  the  freedom  of  a 
Roman  city  by  putting  on   a  cap,   or  to   "  capping "   a   doctor   at  the 
Universities   (p.  294).     But  the  custom  is  not  traced  to  these  sources, 
as  Spence  says,  i.  360. 

*  Sir  T.  Smith,  Commonwealth  of  England,  ed.  1663,  p.  121.     Spence, 
i.  360,  note. 

*  Hargreaves,  pp.  309,  313.        6ii.  8,  3;    10-11. 


216    //.     FROM    THE    1100'S    TO    THE    1800'S 

Richius  primus  juris  Municipalis  Apprentices  Cancellarii 
munus  obtinuit:  post  quern  etiam  alias  episcopos  juris  Romani 
peritos,  sed  plerosque  juris  municipalis  consultos,  reges  nostri 
ad  hoc  munus  admoverunt.  In  hac  etiam  curia  assessores 
seu  Magistri  plerumque  fuerunt  juris  Civiles  Doctores,  et 
Clericos  hujus  Curiae  antiquitus  habuisse  eximiam  juris  civilis 
scientiam,  clarissimum  est  ex  libro  Registri  Brevium  Origi- 
nalium.  .  •  .  .  In  Curia  etiam  .  .  .  fere  omncs  fuerunt  anti- 
quitus Episcopi  Praelative,  in  legibus  Romanis  vel  utroque 
juri  versati  Magistri  .  .  .  plerumque  Juris  Civilis  Professo- 
res,  quibus  ex  jurisdictione  ejus  Curiae  potestas  judicandi 
ex  aequo  et  bono  demandata  est.  Ad  omnes  enim  curias  in 
quibus  non  merum  et  Consuetudinarium  jus,  sed  aequitas 
spectanda  est,  nullius  gentis  leges  tarn  accommodatae  suntf 
quam  jus  Civile  Romanorum,  quod  amplissimas  continet  regu- 
las  de  Contractibus,  Testamentis,  Delictis,  Judiciis  et  omni- 
bus humanis  actionibus." 

The  general  character  of  the  Jurisdiction  of  the  Court  of 
Chancery  may  be  gathered  from  a  speech  of  James  I.  in 
the  Star  Chamber  in  which  he  said :  "  Where  the  rigour  of  the 
law  in  many  cases  will  undo  a  subject,  there  the  Chancery 
tempers  the  law  with  equity,  and  so  mixes  mercy  with  jus- 
tice:"1 and  the  "Doctor  and  Student"  of  the  reign  of 
Henry  VIII.,  reads:  "  Conscience  never  resisteth  the  law  nor 
addeth  to  it,  but  only  when  the  law  is  directly  in  itself  against 
the  Law  of  God  or  of  reason  ...  in  other  things  Acquit  an 
sequitur  legem"  2 

This  Equitable  Jurisdiction  has  been  compared  with  the 
Jurisdiction  of  the  Praetors,  both  being  used  as  a  means  of 
alleviating  the  rigour  of  the  older  law. 3  Both  Equity  and  the 
Jus  Praetorium  tend  to  become  as  rigid  as  the  systems  they 
originally  modified;  both  are  supported  by  fictions,  in  the 
one  case  of  a  pre-existing  state  of  nature  or  Golden  age,  of 
whose  laws  fragments  survive  and  are  embodied  in  the 
Praetor's  Edict,  in  the  other  of  a  King,  whose  Conscience 

1  Cited  Spence,  i.  409  note. 

1  Probably  derived  from  "Jus  praetorium  jut  civile  tubsequitur." 
Spence  i.  409. 

*  Maine,  Ancient  Law,  p.  68. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   217 

supplied  the  inadequacies  of  his  laws.  The  systems  admit  of 
comparison,  but  there  is  no  trace  of  causal  connexion.  It  is 
true  that  the  Praetor  framed  the  formula,  and  the  Chancellor 
and  Clerks  of  the  Chancery  issued  the  writs.  But  the  Praetor 
administered  both  his  own  edict  and  the  Jus  Civile,  and  could 
thus  enforce  his  own  innovations,  while  the  Common  law 
judges  could  and  did  reject  new  writs,  which  seemed  to  them 
not  in  accordance  with  the  Common  law.  And  further,  while 
the  Praetor  by  embodying  exceptiones  in  his  Formula  could 
influence  the  defence  to  actions,  the  Chancellor  had  no  control 
over  the  defences  raised  in  the  Common  Law  Courts  to  the 
writs  he  issued.  The  tribunals  were  separate;  the  judges 
different.  The  influence  of  the  Chancery  on  the  Common  law 
was  therefore  far  slower  in  operation  and  weaker  than  the 
Praetorian  changes  in  the  Jus  Civile;  while  the  clerical  char- 
acter of  the  Chancery,  and  its  innovations  on  the  Common 
law,  raised  a  spirit  of  hostility  which  hindered  its  influence. 

English  Equity  however,  invented  and  administered  by  Cler- 
ical Chancellors,  derived  much  of  its  form  and  matter  from 
Roman  sources.  I  have  neither  the  time  nor  the  knowledge  to 
enable  me  to  give  at  all  an  adequate  account  of  this  Roman 
element,  but  the  question  has  been  discussed  by  Spence, l  and  I 
avail  myself  of  his  results.  Sir  H.  Maine,2  without  going  at 
length  into  the  subject,  thinks  that  the  earlier  Chancery 
judges  followed  the  Canon  law,  a  later  generation  the  Civil 
law,  and  that  the  Chancellors  of  the  eighteenth  century 
availed  themselves  largely  of  the  Romano-Dutch  Treatises 
on  ethics  and  jurisprudence,  compiled  by  the  publicists  of  the 
Low  Countries. 

One  of  the  most  important  branches  of  Equitable  Juris- 
diction related  to  Uses  and  Trusts.3  Fideicommissa  had  been 
introduced  by  the  Romans  to  evade  the  strict  rules  as  to 
legacies  and  successions:  the  person,  to  whose  good  faith  the 
fulfilment  of  the  testator's  wishes  was  entrusted,  was  at  first 
only  bound  in  honour.  Augustus  took  the  first  steps  towards 
enforcing  trusts  by  law,  and  finally  created  a  Praetor  Fidei- 

1  Equitable  Jurisdiction  of  Court  of  Chancery,  Vol.  i. 
1  Ancient  Law,  p.  44,  45. 
*  Spence,  i.  435-517. 


218    //•     FROM    THE    1100'S    TO    THE    1800'S 

commissarius  to  whom  the  duty  was  assigned  of  giving  legal 
effect  to  fideicommissa. 

The  English  system  in  its  origin  only  applied  to  trusts 
created  during  life;  for  lands  were  not  devisable,  and  per- 
sonal estate  was  not  of  sufficient  importance  to  call  for  any 
special  legislation.  Conveyances  of  lands  to  At  that  he  might 
pay  their  fruits  to  B,  were  introduced,  probably  to  allow  the 
clergy  to  avoid  the  Statute  of  Mortmain,  and  this  device  was 
adopted  by  the  laity,  especially  during  the  wars  of  the  Roses 
to  avoid  forfeiture  for  treason,  and  for  other  purposes.  These 
"  Uses  "  the  Chancery  would  enforce  as  binding  on  the  con- 
science, and  the  bequests  of  uses  of  land  which  it  supported, 
and  which  enabled  testators  to  evade  the  feudal  rule  of  the 
indevisability  of  land,  were  akin  to  the  Roman  fideicommissa. 
Both  systems  were  thus  introduced  to  evade  the  strict  law. 
The  jurisdiction  of  Chancery  over  Uses  dates  from  the  reign 
of  Henry  V. ;  and  when  in  the  reign  of  Henry  VIII.,  the 
Statute  of  Uses  gave  the  legal  ownership  to  the  man  who  al- 
ready had  the  Use,  the  Chancellors  regained  their  jurisdiction 
and  created  Trusts  by  the  device  of  enforcing  "  a  use  of  an 
use,"  which  was  not  affected  by  the  Statute.  In  this  however 
there  was  no  trace  of  Roman  influence  and,  as  Mr.  Spence 
acknowledges,  the  details  of  the  system  of  Uses  and  Trusts 
were  entirely  constructed  by  the  Clerical  Chancellors  without 
help  from  the  Roman  system.1  We  can  only  say  that  prob- 
ably the  general  conception  of  Uses  and  Trusts  and  the  as- 
sumption of  Jurisdiction  over  them  were  assisted  by  the  ac- 
quaintance of  the  Clerical  Chancellors  with  the  Roman  fidei- 
commissa. 

The  system  of  Mortgages  2  was  much  affected  by  the  doc- 
trines of  the  Civil  law,  acting  through  the  Court  of  Chancery, 
and  a  mortgage  now  is  "  a  security  founded  on  the  common 
law,  and  perfected  by  a  judicious  and  wise  application  of  the 
principles  of  redemption  of  the  Civil  law."3  The  strictness 
of  the  Common  law  viewed  the  Mortgage  in  the  light  of  a  con- 
ditional grant  of  land  by  the  mortgagor  to  the  mortgagee, 

1  Spence,  i.  460  note;    Butler's  note  to  Co.  Lit.  i.  290  b. 
*  Butler's  notes  to  Co.  Lit.  i.  205  a.,  290  b.    Spence,  i.  601.    Coote  on 
Mortgages,  4th  edit.  pp.  1,  14.     Warren,  Law  Studies,  p.  521. 
»  Coote,  p.  1. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   219 

the  condition  being  that  the  land  should  revert  to  the  grantor 
on  payment  by  a  certain  day  of  the  money  lent.  If  not,  the 
land  was  discharged  from  the  condition  and  became  absolutely 
vested  in  the  mortgagee.  But  the  Civil  law  regarded  the  debt 
intended  to  be  secured,  and  not  the  land,  as  the  principal; 
payment  of  the  principal  debt  at  any  time  would  therefore 
release  the  accessory  security  on  the  land :  the  creditor,  if  not 
in  possession  of  the  land,  could  only  sell  it  under  a  decree 
from  the  Praetor,  and  tender  of  the  amount  due  before  the 
decree  of  sale  released  the  land.  This  construction,  more 
lenient  to  mortgagors,  was,  under  Charles  I.,  adopted  by  the 
Chancery,  who  allowed  an  "  equity  of  redemption  "  to  the 
mortgagee  within  a  reasonable  time,  though  after  the  day 
on  which,,  according  to  the  Common  law,  the  land  would  be 
forfeited  for  non-payment.  To  maintain  their  jurisdiction 
against  both  the  Common  law  judges  and  the  debtors  them- 
selves, the  Chancellors  held  void  any  conditions  in  the  loan  by 
which  the  borrower  lost  his  "  equity  of  redemption."  And 
this  is  similar  to  if  not  derived  from  a  constitution  of  the 
Emperor  Constantine,  which  expressly  rendered  such  stipula- 
tions void. 1  We  can  thus  trace  the  altered  view  of  Mort- 
gages, the  necessity  for  foreclosure,  and  the  protection  of  the 
equity  of  redemption,  as  established  in  the  Court  of  Chancery, 
to  the  Civil  law. 

In  the  construction  of  legacies  and  documents,  the  Chan- 
cellors have  availed  themselves  freely  of  Roman  rules.2  The 
Chancery  had  no  original  jurisdiction  in  testamentary  mat- 
ters, and  therefore  felt  bound  to  adopt  the  rules  of  the 
Ecclesiastical  Courts,  which  were  those  of  the  Civil  law.  In 
Hurst  v.  Beach  3  the  Vice-Chancellor  directed  the  opinion  of 
civilians  to  be  taken  as  to  the  admissibility  of  evidence  in  a 
case  as  to  legacies,  and  on  the  practice  of  the  Ecclesiastical 
Courts.  In  Hooley  v.  Hatton,*  where  the  question  was 
whether  two  legacies  to  the  same  person  in  a  will  and  codicil 
were  cumulative  or  substitutive,  the  case  was  argued  with 
citations  from  the  Civil  law ;  and  Lord  Thurlow,  in  his  judg- 

1  Cod.  8,  34,  3. 

1  Spence,  i.  518,  523,  566. 

•  5  Mad.  351,  357,  360. 

•  Cited  in  Ridges  v.  Morrison,  1  Brown.    Ch.  C.  389. 


220    //.     FROM    THE    1100'S    TO    THE    1800'S 

ment,  said :  "  No  argument  can  be  drawn  in  the  present  case 
from  internal  evidence;  we  must  therefore  refer  to  the  rules 
of  the  Civil  law."  Similarly  in  interpreting  the  language  of 
alleged  trusts,  the  rules  of  the  civil  law  are  referred  to.1  Re- 
mains of  the  Roman  doctrine  of  beneficium  inventoris  are 
traced  in  the  time  of  Charles  I.,  when  an  executor  who  had 
not  exhibited  an  inventory  was  charged  with  a  legacy  after 
20  years.  a  In  the  case  of  legacies  for  public  uses  Lord  Thur- 
low  said  that  the  cases  "  had  proceeded  upon  notions  adopted 
from  the  Roman  and  Civil  laws,  which  are  very  favourable  to 
charities,  that  legacies  given  to  public  uses  not  ascertained 
shall  be  applied  to  some  proper  object."  3  And  the  same  is 
true  of  charitable  trusts.4  But  these  rules  were  sometimes 
applied  with  more  zeal  than  discretion,  as  when  Sir  R.  Arden, 
M.  R.,  afterwards  Lord  Alvanley,  entirely  misunderstood  the 
meaning  of  exceptio  doli'.b  But  Mr.  Spence's  remark  that 
"  probably  the  same  law  as  to  legacies  has  continued  in  Eng- 
land from  the  time  of  Agricola  to  the  present  day  "  6  shows 
too  great  a  faith  in  the  persistence  of  a  highly  developed 
system  of  law  through  centuries  of  barbarism. 

The  jurisdiction  of  the  Chancery  over  Infants  7  is  very 
similar  to  that  exercised  over  guardians  by  the  Roman 
Praetor,  but  Mr.  Spence  is  not  able  to  say  more  than  that 
the  Corpus  Juris  "  has  been  occasionally  consulted,  if  not 
resorted  to  as  an  authority  "  on  the  subject.  We  have  al- 
ready noticed  Lord  Macclesfield's  preference  for  the  Civil  law 
rule  as  to  the  persons  who  should  be  guardians  as  compared 
to  that  of  the  Common  law.6  The  Chancery  jurisdiction  over 
idiots  and  lunatics  is  also  similar  to  that  of  the  Praetor  and 
may  very  possibly  have  been  derived  from  it. 9 

The  English  Law  of  Partnership  is  derived  from  three 
sources,  the  Common  Law,  the  Lex  Mercatoria,  and  the 
Roman  Law.10  Of  the  Lex  Mercatoria  we  need  only  say  here 

1  Knight  v.  Knight,  3  Beav.  161,  172. 

•  Spence,  i.  585,  citing  Tothill,  183:  15  Car.  I.,  whiten  appears  a  wrong 
reference. 

»  White  v.  White,  1  Br.  Ch.  C.  15.         «  Spence,  i.  587. 

•  Kennett  v.  Abbott  (1799),  4  Ves.  808. 

•  Spence,  i.  523  note.        T  Spence,  i.  606-615. 

•  V.  supra,  p.  130.        •  Spence,  i.  618-620. 
*•  Collier  on  Partnership,  Lond.  1840,  p.  1. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   221 

that  it  appears  in  itself  to  have  been  at  least  partly  based  on 
the  Roman  law.1  Mr.  Justice  Story  has  made  an  elaborate  and 
detailed  investigation  of  the  relations  of  the  Common  to  the 
Roman  law,  and  finds  great  similarity  between  them.2  Both 
laws  recognize  the  difference  between  a  partnership  and  a 
community  of  interest, 3  and  provide  that  no  new  partner  can 
be  introduced  without  the  concurrence  of  the  original  part- 
ners. 4  But  the  Common  law  has  refused  to  follow  the  Roman 
law  in  holding  invalid  an  agreement  that  the  personal  repre- 
sentative of  a  partner  should  succeed  him  in  the  partnership. 
Both  laws  require  a  partnership  to  be  in  good  faith  and  for 
a  lawful  purpose;  5  and  that  all  partners  must  contribute 
something,  whether  property  or  skill,  to  the  common  stock.6 
Both  require  community  in  profits  among  the  partners  and, 
to  a  more  limited  extent,  community  in  losses.7  In  the  ab- 
sence of  express  agreement  both  laws  require  an  equal  divi- 
sion of  profits.8  The  Common  law  formerly  went  beyond  the 
Roman  law  in'  making  persons  who  share  the  profits  of  a  trade 
liable  to  operation  of  law,  to  third  parties  as  partners,9 
but  this  rule  was  overthrown  in  Cox  v.  Hickman.10  Both  laws 
recognize  a  division  into  universal,  general,  and  special  part- 
nerships, though  the  chief  Common  law  division  is  into  public 
and  private  partnerships.11  Both  regulate  the  duration  of 
partnership  by  the  consent  of  the  partners,  but  the  Roman 
law  went  further  than  the  English,  and  prohibited  partner- 
ships extending  beyond  the  life  of  the  parties.12  No  particu- 
lar forms  for  the  constitution  of  a  partnership  were  required 
by  either  law.13  By  the  Roman  law,  the  mere  partnership 
relation  conferred  less  extensive  powers  of  disposition  of  the 
partnership  property  than  are  given  by  the  Common  law.14 
A  Roman  partner  could  not  bind  the  firm  by  debts,  nor  alien- 
ate more  than  his  share  bf  the  partnership  property.  But 
in  the  absence  of  express  stipulation  and  with  some  limitations 

1  Spence,  i.  665. 

1  Story  on  Partnership,  Boston,  1881,  7th  ed. 

•Story,  §§  3,  4.        «  Ibid.  §  5.       •  §  6.       •  §  15. 

*§  20.        "§§24,25.      »§37. 

10 18  C.  B.  617;    8  H.  L.  C.  268. 

"Story  §§  72-76. 

» •  Story  §§  85,  196.        1 8  §  86.        l  •  §  95. 


222     //.     FROM    THE    1100'S    TO    THE    1800'S 

each  partner  of  an  English  partnership  may  be  taken,  by  out- 
siders, as  having  an  equal  and  complete  power  of  administra- 
tion over  the  whole  of  the  partnership  affairs.1  Both  laws 
admit  a  discharge  of  a  debt  to  or  by  one  partner  to  be  good 
for  or  against  the  whole  firm.  2  In  the  Common  law,  within 
the  scope  of  the  partnership,  the  majority  have  a  right  to 
govern,  but  in  the  Roman  law  the  express  or  implied  assent 
of  all  the  partners  is  required.3  Both  laws  make  partners 
liable  to  each  other  for  negligence  or  fraud,  and  require  a 
withdrawal  from  the  partnership  to  be  in  good  faith. 4  Both 
laws  consider  a  partnership  for  no  certain  period  as  dissoluble 
at  the  will  of  any  partner ;  6  but  the  Roman  law  went  further 
than  the  Common  law  in  requiring  that  the  dissolution  should 
not  take  place  at  an  unseasonable  time.6  Both  laws  allow  the 
Court  to  dissolve  the  partnership  in  case  of  positive  or  medi- 
tated abuse  of  it  by  a  partner,  or  when  its  objects  are  no 
longer  attainable,  as  in  the  case  of  a  partner's  insanity.7  By 
both  laws,  the  assignment  of  his  interest  by  one 'partner,  con- 
trary to  the  will  of  the  others,  dissolves  the  partnership.8 
Both  laws  dissolve  the  partnership  by  death ; 9  and  many  of 
the  provisions  in  both  laws  for  taking  an  account  and  winding 
up  a  partnership  are  similar,  though  the  English  sale  is  more 
convenient  than  the  Roman  division.10  Whilst  English  part- 
ners are  liable  to  third  parties  in  solido,  by  the  Roman  law 
they  were  only  liable  pro  parte. 

This  enumeration  shows  a  sufficient  agreement  between  the 
two  systems  to  justify  the  assertion  that  while  the  method  of 
the  introduction  of  so  much  Roman  law  in  early  times  is  not 
clear,  in  later  times  most  of  its  leading  principles  have  become 
incorporated  into  the  Common  law  of  Partnership.11 

Mr.  Spence  and  Lord  Justice  Fry  12  agree  that  the  Equi- 
table Jurisdiction  to  enforce  Specific  Performance  is  not 
derived  from  the  Roman  law,  which  only  gave  damages  for 
breach  of  contract,  and  adhered  to  the  maxim ;  "  nemo  potest 

I  §  103.       *  §  lie. 

8  8  125:  noted  by  Blackstone,  i.  484. 

'§§  135,  170,  176.          •  §§  268,  269.        •  §§  275,  276.        »  §§  288,  292. 

8  §  307.          •  §  31 7.         » °  §  352.          "  Spence,  i.  665. 

II  Fry  on  Specific  Performance,  2nd  edit.  Lond.  1881,  pp.  3-8.    Spence, 
i.  645. " 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   223 

praecise  cogi  ad  factum."  *  Spence  considers  the  jurisdiction 
a  "  clerical  invention  "  and  Fry  doubts  whether  to  attribute 
it  to  the  Canon  law,  which  said  "  Studiose  agendum  est  ut  ea 
quae  promittuntur  opere  compleantur," 2  or  to  "  the  plain 
principles  of  morality  and  common  sense  of  the  Judges  who 
founded  and  enlarged  the  equitable  jurisdiction." 

Besides  the  chief  heads  of  its  jurisdiction,  the  leading  prin- 
ciples on  which  the  Chancery  administers  justice  show  traces 
of  clerical  and  Roman  influence.  The  term  "  Conscience,"  3 
which  is  so  involved  in  the  decisions  of  the  Court,  though  itself 
of  clerical  invention,  is  like  the  Praetorian  notion  of  bona 
fides;  but  as  to  mala  fides  the  English  law  has  departed  from 
the  Roman  principle,  lata  culpa  plane  dolo  comparabitur,  by 
holding  that,  "  Gross  negligence  may  be  evidence  of  mala 
fides,  but  it  is  not  the  same  thing."4  The  jurisdiction  of  the 
Chancery,  in  fraud,  to  cancel  and  deliver  up  deeds  is  anal- 
ogous to  the  Praetorian  restitutio  in  integrum,  and  actio  de 
dolo.  5  Both  Praetor  and  Chancellor  had  a  power  to  relieve 
against  Accident,  grounded  in  the  Roman  law  on  naturalist 
justitia.  6  So  the  jurisdiction  to  relieve  against  Mistake,  and 
the  distinction  between  mistake  of  law,  and  of  fact,  both  in 
the  Common  law  and  Chancery,  appear  of  Roman  origin ; 
though  under  Edward  IV.  the  Roman  maxim,  "  nee  stultis 
solere  succurri  sed  errantibus,"  was  met  by  a  clerical  Chan- 
cellor with  "  Deus  est  procurator  fatuorum," 7  and  the 
"fool"  was  relieved.  The  injunctions  of  the  Chancery  are 
comparable  to  Praetorian  Interdicts;  8  its  jurisdiction  in  dis- 
covery to  the  actio  ad  exhibendum,  and  possibly  to  the  early 
and  obsolete  actio  interrbgatoria.9  The  procedure  for  per- 
petuating evidence  by  examining  witnesses  de  bene  esse  had 
also  a  parallel  in  Roman  procedure.10 

1  Pothier,  Des  obligations,  i.  2,  2,  2. 

2  Decret.  Greg.  IX.  i.  35,  3. 

8  Spence,  i.  411.  cf.  aequitas  sequitur  legem. 

*  Ld.  Denman  in  Goodman  v.  Harvey,  4  Ad.  &  E.  876.  See  also  1 
Hare,  71.  Spence,  i.  425  note. 

8  Spence,  i.  622.         8  Ibid.  i.  628.    Dig.  27,  1,  13,  7. 

7  Dig.  22,  6,  9.     Gary's  Rep.   (ed.  1650),  p.  17.     Spence,  i.  632,  637. 
Both   editions   of   Gary   that    I    have   seen   have   the   odd   reading    est 
procurator  futuruf. 

8  Spence,  i.  669.          •  Spence,  i.  228,  678. 
10  Dig.  ix.  2,  40.     Spence,  i.  681. 


224    //.     FROM    THE    1100'S    TO    THE    1800'S 

Without  proceeding  to  a  more  detailed  examination  enough 
has  been  said  to  show  that  though  usually  the  details  of  the 
Equitable  Jurisdiction  were  worked  out  by  the  Chancellors  on 
English  lines,  the  subjects  of  jurisdiction  and  the  powers  of 
the  Court  were  largely  derived  from  the  functions  of  the 
Praetor,  and  that  this  was  due  in  the  main  to  the  influence 
of  the  early  Clerical  Chancellors. 

At  present  however  the  Courts  of  Chancery  and  Common 
law  stand  towards  the  Civil  or  any  other  law  in  no  different 
relation.  As  Blackstone  has  said, *  "  In  matters  of  positive 
right,  both  Courts  must  submit  to  and  follow  ancient  and 
invariable  maxims  .  .  .  where  they  exercise  a  concurrent 
jurisdiction  they  both  follow  the  law  of  the  proper  tribunal; 
in  matters  originally  of  ecclesiastical  cognizance,  they  both 
equally  adopt  the.  Canon  and  Imperial  law,  according  to  the 
nature  of  the  subject."  But  the  nature  of  the  subjects  which 
come  before  the  Chancery  is  more  likely  to  call  for  its  re- 
course to  the  Canon  or  Civil  law,  than  those  which  are  dis- 
cussed in  the  Common  Law  Courts,  and  therefore  Blackstone 
recognizes  in  1763  that  in  the  Chancery  "  the  proceedings 
are  to  this  day  in  a  course  much  conformed  to  the  Civil 
law."2 

3.    Roman  Law  in  the  Ecclesiastical  Courts 

Of  the  Ecclesiastical  Courts,  Hale  says :  8  "  the  rule  by 
which  they  proceed  is  the  Canon  law,  but  not  in  its  full  lati- 
tude, and  only  so  far  as  it  stands  uncorrected,  either  by  con- 
trary acts  of  Parliament,  or  by  the  common  law  and  custom 
of  England:  when  the  canon  law'is  silent,  the  civil  law  is 
taken  in  as  a  director,  especially  in  points  of  exposition  and 
determination  touching  wills  and  legacies."  Their  jurisdic- 
tion may  be  treated  of  under  two  heads:  (1)  that  relating 
solely  to  the  internal  life  and  worship  of  the  Church  of 
England;  (2)  that  affecting  the  whole  realm,  such  as  the 
testamentary  and  matrimonial  jurisdiction. 

The  first  head  may  be  shortly  dealt  with.     The  separation 

1  Bl.  m.  436. 
*  Bl.  i.  20. 
•Hist.  C.  L.  28. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   225 

of  the  civil  and  clerical  courts  under  William  I.,  ensured  for 
the  latter  a  peculiarly  Roman  and  canonical  law  and  pro- 
cedure ;  the  Conqueror's  law  provided,  "  secundum  canones  ct 
episcopates  leges  rectum  Deo  et  Episcopo  suo  faciat,"1  and 
the  procedure  was  that  of  the  Roman  Consistory.  This 
tended  to  create  a  feeling  of  hostility  on  the  part  of  the 
Courts  of  Common  law  and  the  English  people  towards 
Courts  not  ruled  by  the  Common  law  of  England. 

The  present  ecclesiastical  law  consists  of  three  portions:2 
I.  Statutes,  and  enactments  made  in  pursuance  of,  or  ratified 
by,  statutes.  II.  Certain  portions  of  the  Canon  law,  and 
certain  constitutions  and  canons  issued  by  competent  author- 
ities. III.  The  Ecclesiastical  Common  law ;  ecclesiastical 
usages,  not  embodied  in  writing,  except  in  some  judicial  de- 
cisions, but  recognized  as  binding  and  supposed  to  be  known 
by  the  Courts. 

The  Canon  law  as  such  is  a  body  of  Roman  ecclesiastical 
law;  but  only  such  parts  of  it  as  are  contained  in  the  pro- 
vincial constitutions,3  and  in  the  general  usages  of  the 
church,  and  are  recognized  in  the  Courts  of  this  realm,  are 
binding  in  England.4  No  canon  contrary  to  the  Common  or 
Statute  law  or  to  the  Prerogative  is  of  any  force;  and  no 
canons  made  since  the  reign  of  Henry  VIII. ,  and  not  sanc- 
tioned by  Parliament,  are  binding  on  the  laity:  nor  are 
canons  binding  made  before  that  reign,  unless  adopted  by  the 
English  church.5 

The  position  of  Ecclesiastical  law  in  England  has  been 
well  described  by  Tindal,  L.  C.  J.  as  follows ; 6  "  The  ques- 
tion depends  upon  the  Common  law  of  England,  of  which 
the  Ecclesiastical  law  forms  a  part.  .  .  .  The  law  by  which 
the  spiritual  Courts  of  this  kingdom  have  from  the  earliest 
times  been  governed  and  regulated,  is  not  the  general  Canon 

'Stubbs,  S.  C.  p.  85. 

*Brice,  Public  Worship,  London,  1875,  pp.  1-10.  Phillimore  On  Ec- 
clesiastical Laic,  London,  1873:  i.  pp.  12-19.  Coote,  Ecclesiastical  Prac- 
tice, London,  1847. 

'Collected  in  Lyndwood's  Provinciale  seu  Constitutiones  Angliae. 
Paris,  1505;  Oxford,  1079. 

*Martin  v.  Mackonochie,  L.  R.  2  Adm.  and  Eccl.  116,  153. 

1 Bishop  of  Exeter  v.  Marshall,  L.  R.  3  H.  L.  17,  47,  55. 

«R.  v.Millis  (1844),  10  Cl.  and  Fin.  534,  671,  678,  680. 


226      //.     FROM   THE   1100'S   TO   THE   1800'S 

law  of  Europe,  imported  as  a  body  of  law  into  this  kingdom, 
and  governing  those  courts  proprio  vigore,  but  instead 
thereof  an  Ecclesiastical  law,  of  which  the  general  Canon 
law  is  no  doubt  the  basis,  but  which  has  been  modified  and 
altered  from  time  to  time  by  the  ecclesiastical  constitutions  of 
our  archbishops  and  bishops,  and  by  the  legislation  of  the 
realm,  and  which  has  been  known  from  early  times  by  the 
distinguishing  title  of  the  King's  Ecclesiastical  law.  .  .  . 
That  the  Canon  law  of  Europe  does  not,  and  never  did,  as 
a  body  of  laws,  form  part  of  the  law  of  England,  has  been 
long  settled  and  established  law."  So  also  Sir  John  Nicholl :  1 
"  Indeed  the  whole  Canon  law  rests  for  its  authority  in 
this  country  upon  received  usage;  it  is  not  binding  here 
proprio  vigore."  The  Canon  law  of  itself  is  not  therefore 
part  of  English  law  [This  statement,  however,  should  be 
compared  with  the  views  of  Dr.  Stubbs,  in  Essay  No.  8,  post, 
and  of  Professor  Maitland,  in  his  volume  on  the  Canon  Law, 
there  cited.  —  EDS.],  nor  does  the  Civil  law  appear  to  enter 
into  this  branch  of  the  Ecclesiastical  Jurisdiction. 

The  Ecclesiastical  Courts  had  jurisdiction  affecting  the 
subjects  of  the  realm  in  three  matters:  —  I.  Pecuniary,  in 
tithes,  dilapidations  &c.,  to  which  we  need  not  further  refer. 
II.  Matrimonial  causes;  validity  of  marriage,  legitimacy, 
divorce,  &c.  III.  Testamentary  causes,  and  the  administra- 
tion of  the  estates  of  Intestates. 

Matrimonial  Jurisdiction 

The  Judicature  Act,  1873, 2  transferred  to  the  newly  cre- 
ated Probate,  Admiralty  and  Divorce  Division  of  the  High 
Court  of  Justice  inter  alia,  all  matters  within  the  exclusive 
cognizance  of  the  Court  for  Divorce  and  Matrimonial  Causes, 
and  applied  to  that  Division  all  the  rules,  orders  and  proce- 
dure of  that  Court.  The  Court  for  Divorce  and  Matrimonial 
Causes  was  created  by  an  Act  of  1857,3  by  which  all  causes 
and  matters  matrimonial,  which  should  be  pending  in  any 
Ecclesiastical  Court  in  England  were  transferred  to  that 

13  Phill.  Rep.  67,  78-79. 

*3fl  and  37  Vic.  c.  66  §§  34,  70,  74.    38  and  39  Vic.  c.  77  §§  18,  21. 

»20  and  21  Vic.  c.  85  §  4,  6,  22. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   227 

Court,  which  was  to  possess  all  jurisdiction  on  the  subject 
exercisable  by  any  ecclesiastical  court,  and  to  proceed 
and  act  and  give  relief  on  principles  and  rules  which  in 
the  opinion  of  the  Court  should  be  as  nearly  as  might 
be.  conformable  to  the  principles  and  rules,  on  which  the 
Ecclesiastical  Courts  had  heretofore  acted  and  given  relief. 
This  law  of  the  Ecclesiastical  Courts  in  the  matter  of  mar- 
riage had  been  based  on  the  Canon  law,  though  its  authority 
was  much  restricted,  and  depended  on  its  having  been  re- 
ceived and  admitted  by  Parliament,  or  upon  immemorial 
usage  and  custom. 1  This  jurisdiction  devolved  upon  the 
Clerical  Courts  from  the  conception  of  marriage  as  a  relig- 
ious sacrament  and  tie,  the  nature,  validity,  and  dissolution 
of  which  were  matters  of  clerical  cognizance.  The  procedure 
was  "  regulated  according  to  the  practice  of  the  civil  and 
canon  laws,  or  rather  according  to  a  mixture  of  both,  cor- 
rected and  new  modelled  by  their  own  particular  usages,  and 
the  interposition  of  the  courts  of  common  law."  2  A  well 
known  instance  of  this  is  the  way  in  which  the  law  of  England 
dealt  with  the  Roman  doctrine  of  legitimatio  ante  nuptias. 
But  generally  the  greater  part  of  the  English  law  on  matri- 
monial causes  is  derived  from  the  Civil  or  Canon  law. 

Testamentary  Jurisdiction  » 

The  Testamentary  jurisdiction  was  also  in  the  hands  of 
clerical  judges.3  The  present  Procedure  and  Practice  of  the 
Probate  Division  of  the  High  Court  of  Justice  are  the  same,, 
(except  as  altered  by  rules  under  the  Judicature  Acts),  as 
those  in  force  in  the  Court  of  Probate  before  1875. 4  This 
Court  was  created  by  the  Act  of  1857,5  by  which  the  jurisdic- 
tion of  all  ecclesiastical  Courts  having  power  to  grant  pro- 
bate of  wills  was  transferred  to  it,  and  its  practice,  except 
as  subsequently  provided  by  rules  and  orders,  was  to  be  ac- 
cording to  the  then  practice  in  the  Prerogative  Court  of 
Canterbury.6  Thus  the  present  jurisdiction  of  the  Probate 

1Shelford  On  Marriage.     London,  1841:    pp.  17-21. 

•Blackstone,  iii.  100. 

•Coote's  Probate  Practice,  8th  edit.     London,  1878. 

•38  and  39  Vic.  c.  77  §§  18,  21.    36  and  37  Vic.  c.  66  §§  23. 

•20  and  21  Vic.  c.  77  §  3.         «/6id.  §   29,  30. 


228      //.     FROM   THE  1100'S  TO   THE  1800'S 

Division  is  founded  on  this  Ecclesiastical  law;  but  as  to  the 
origin  of  the  Ecclesiastical  Jurisdiction  there  is  considerable 
doubt. 

Wills  were  probably  introduced  by  the  clergy  from  Roman 
sources,  and  from  early  times  the  clerical  courts  had  juris- 
diction over  suits  as  to  the  validity  of  wills,  or  in  what  is 
known  as  "  probatio  solemnis  per  testes."  l  But  whether 
this  jurisdiction  dates  from  the  separation  of  the  Courts 
by  the  Conqueror,  or  was  assumed  by  the  English  Church 
at  a  later  period,  there  is  no  evidence  to  show.  Lyndwood  2 
expressly  says  'cujus  regis  temporibus  hoc  ordinatum  sit 
non  reperio,"  but  the  jurisdiction  certainly  existed  at  the  time 
of  Glanvil, 3  and  the  absence  of  evidence  appears  to  show  that, 
when  assumed,  it  was  not  opposed  by  the  common  lawyers. 
As  to  the  other  branch  of  testamentary  jurisdiction,  the 
power  of  granting  probate  of  a  will  in  common  form  to  an 
executor,  and  also  as  to  the  power  of  granting  letters  of 
administration  of  the  goods  of  an  intestate  to  his  next  of 
kin,  we  have  more  evidence. 4  The  latter  was,  even  in  the 
time  of  Glanvil,  in  the  hands  of  the  king's  courts,  the  next  of 
kin  having  a  right  to  succeed,  subject  to  the  claims  of  the 
lord,  without  any  clerical  intervention.5  In  the  reign  of 
Stephen,  the  jurisdiction  over  ecclesiastical  persons  and  the 
•distribution  of  their  goods  was  placed  in  the  hands  of  the 
Bishop,  but  this  did  not  affect  the  laity. 6  Mr.  Coote  at- 
tributes clerical  control  over  wills  to  the  study  of  the  Civil 
law  by  the  clergy  after  the  teaching  of  Vacarius,  although 
their  attempts  to  obtain  that  control  were  resisted  by  the 
barons.7  In  1191,  the  clergy  in  Normandy,  who  had  pre- 
viously been  granted,  as  in  England,  the  control  of  clerical 
wills  and  intestacies,  received  the  control  of  all  wills  and 
intestacies.  Magna  Charta  contains  the  provision 8  "  Si 
aliquis  liber  homo  intestatus  decessit,  catalla  sua  per  manu.t 
propinquorum  et  amicorum  suorum  per  visum  ecclesiae  distri- 
buantur,  salvis  cuicunque  debitis,  quae  defunct  us  ei  debebat." 

•Bl.  Com.  iii.  95.  Coote's  Eccl.  Practice,  pp.  22-86. 
'Lyndwood,  Provincials,  3,  13,  f.  176  (ed.  1679). 
*G1.  vii.  8.  4Coote,  p.  22.  »G1.  vii.  6,  7. 

•Coote,  p.  27.    Stubhs,  8.  C.  p.  114. 
Ubid.  p.  31.          '§  27.     Stubbs,  S.C.  p.  292. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   229 

But  this  clause  is  omitted,  not  only,  as  Coote  observes,  in 
the  Charter  of  1225,  but  also,  which  he  does  not  notice,  in 
the  reissues  of  the  Charter  in  1216,  and  1217.  He  suggests 
that  the  omission  is  due  to  the  hostility  of  the  barons,  but, 
if  so,  it  is  curious  that  the  Articles  which  the  Barons  them- 
selves put  forward  in  1215  should  run,1  "  Si  aliquis  liber 
homo  intestatus  decesserit,  bona  sua  per  manum  proximo- 
rum  parentum  suorum  et  amicorum,  et  per  visum  ecclesiae, 
distribuantur ;  "  2  unless  this  was  a  concession  to  the  church 
by  the  barons  to  secure  its  cooperation  in  the  coming 
struggle.  The  clergy  were  anxious  to  obtain  control  of 
intestacy  that  they  might  devote  a  share  of  the  intestate's 
estate  to  pious  purposes ;  the  lords  preferred  to  confiscate 
the  property.  The  clergy  protested  "  Item  mortuo  laico 
intestato,  dominus  rex  et  caeteri  domini  feudorum  bona 
defuncti  sibi  applicantes  non  permittunt  de  ipsis  debita  solvi, 
nee  residuum  in  usus  liberorum  et  priximorum  suorum  et 
olios  pios  usus  per  loci  ordinarium  cujus  interest,  aliqua  con- 
rerti;"3  thus  the  lords  neither  paid  the  debts,  nor  recog- 
nized the  pious  uses.  The  statute  of  Westminster  charged 
the  payment  of  the  debts  of  the  intestate  on  that  third  of  the 
property  which  the  Ordinary  destined  to  pious  uses,  instead 
of,  as  in  previous  practice,  on  the  rationabiles  paries  of  the 
widow  and  children.4  A  statute  of  1357  5  commanded  the 
Ordinaries  to  appoint  "  de  plus  proscheins  et  plus  amis  de 
mort  intestat,  pur  administrer  ses  biens  .  .  .  et  recoverer 
come  executoures  les  dettes  dues  au  dit  mort  .  .  .  et  soient 
accountables  aux  ordinairs  si  avant  come  executioures  sont 
en  cas  de  testament"  The  Ordinary  thus  appointed  one  of 
the  next  of  kin  as  administrator  to  distribute  the  effects  in 
such  proportions  as  the  church  following  the  system  of  the 
civil  law  should  direct,  and  the  Act  also  gave  power  to  bring 
actions  concerning  the  intestacy  in  the  King's  Courts,  as 
well  as  in  the  Courts  of  the  Ordinary,  thus  making  the 
system  more  secure. 

Article  16.     Ibid.  p.  283. 

*Note,  that  the  clause  as  to  payment  of  just  debts  is  omitted. 

'Gravamina  and  Articles  of  1257,  §  25.     Coote,  p.  39. 

*  Coote,  pp.  44-47,   (A.  D.  1285). 

•31  Edw.  III.  c.  11.    Coote,  p.  58. 


230     //.     FROM   THE  1100'S  TO   THE  1800'S 

The  Prerogative  Court  of  the  Archbishop,  which  dealt 
with  wills  and  intestacies  was  established  by  Archbishop  Staf- 
ford in  14-13,  who  transferred  the  jurisdiction  of  the  Court 
of  Arches  over  those  matters  to  the  New  Court,  presided  over 
by  a  Commissary.1  The  first  Commissary  was  Alexander 
Provert,  Bachelor  of  Canon  law. 

But  the  Ordinary's  power  in  intestacy  became  useless 
after  the  Reformation,  owing  to  the  refusal  of  the  Common 
Law  Courts  to  enforce  the  directions  of  the  Ordinary,  or  the 
Ecclesiastical  bonds  for  due  performance  of  their  duties 
which  he  took  from  administrators.2  This  unsatisfactory 
state  of  things  resulted  in  the  Statute  of  Distributions, 
which  gave  the  Ordinaries  and  ecclesiastical  judges,  "  having 
power  to  commit  administrations  of  the  goods  of  persons 
dying  intestate,"  power  to  take  bonds  for  the  due  administra- 
tion of  the  estate,  which  should  be  enforceable  in  Courts  of 
the  law. 8 

We  have  thus  traced,  as  far  as  the  lack  of  evidence  allows, 
the  process  by  which  the  Clerical  Courts  acquired  the  juris- 
diction over  all  matters  connected  with  wills  and  testaments. 
This  jurisdiction,  once  obtained,  was  exercised  on  the  lines 
of  the  Canon  and  Civil  laws :  as  Hale  says,4  "  where  the  Canon 
law  is  silent,  the  Civil  law  is  taken  in  as  a  director,  especially 
in  points  of  exposition  and  determination  touching  wills  and 
legacies,"  and  these  "  directions  of  the  Civil  law  "  have  been 
adopted  by  the  Chancery  in  cases  involving  the  construction 
of  documents  and  wills. 

The  original  jurisdiction  of  the  Ecclesiastical  Courts  in 
cases  laesionis  fidei,  over  contracts  not  enforceable  by  the 
King's  courts,  and  its  influence  on  the  works  of  Glanvil  and 
Bracton  have  already  been  referred  to. 

4.  Roman  Law  in  the  Admiralty 

The  early  history  of  the  "  Court  of  Admiralty  proceeding 
according  to  the  Civil  law,"  as  Coke  terms  it,  is  closely  con- 

'Coote,  p.  81. 

'Coote,  p.  55. 

•22  and  23  Ch.  II.  c.  10,  made  perpetual  by  1  Jac.  II.  c.  17  §  18. 

4  Hale,  Common  Law,  p.  28. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   231 

nected  with  the  history  of  the  Law  Merchant,  which  will  form 
the  subject  of  our  next  section.  From  very  early  times 
merchants  and  mariners  regulated  their  dealings  by  a  set  of 
customs  and  rules  known  as  the  Law  Merchant,  Law  Marine, 
or  Customs  of  the  Sea.  In  the  Domesday  Book  of  Ipswich,1 
it  is  recorded  that  "  the  pleas  yoven  to  the  law  maryne,  that 
is  to  wyte,  for  straunge  marynerys  passaunt,  and  for  hem 
that  abydene  not  but  her  tyde,  shuldene  be  pleted  from  tyde 
to  tyde ;  "  and  it  is  probable  that  similar  courts  existed  in  all 
seaport  towns,  and  places  where  merchants  resorted.  This 
Law  Merchant  and  Customs  of  the  Sea  came  into  prominence 
in  the  countries  bordering  on  the  Mediterranean ;  lands  which 
had  been  under  Roman  rule  continued  to  obey  a  modified  ver- 
sion of  the  Roman  laws,  (which  the  Roman  jurists  themselves 
had  borrowed  from  the  Rhodian  code,)  adapted  and  altered 
to  meet  the  new  developments  of  commerce  and  civilization.2 
And  by  the  middle  of  the  thirteenth  century  a  number 
of  written  codes  of  Maritime  law  came  into  existence  in  most 
of  the  principal  centres  of  mercantile  activity.  The  Conso- 
lato  del  Mare  represents  the  customs  observed  at  Barcelona ; 
the  Laws  of  Oleron,  the  usages  of  Bordeaux  and  the  Isle  of 
Oleron ;  the  Laws  of  Wisbuy,  the  rules  of  the  Hanse  Towns. 
The  Italian  version  of  the  Consolato  speaks  of  its  contents 
thus :  3  "  these  are  the  good  constitutions  and  customs  which 
belong  to  the  sea,  the  which  wise  men  passing  through  the 
world  have  delivered  to  our  ancestors." 

The  early  history  of  the  Customs  of  the  Sea,  and  of  the  Ad- 
miralty Court  in  England  may  be  gathered  from  a  memoran- 
dum of  1339,  entitled  "  Fasciculus  de  Superioritate  Maris," 
which  recites  that  the  Justiciaries  of  the  King  were  to  be  con- 
sulted as  to  the  proper  mode  of  revising  and  continuing  the 
form  of  proceeding  instituted  by  the  King's  grandfather  and 

1  Cited  from  a  MS  of  1289,  in  Twiss,  Black  Book  of  Admiralty,  ii.  23. 

2  Pardessus,  Collection  des  Lois  Maritimes,  Paris,  1828,  cited  in  Twiss, 
iv.  Pref.  129.     Godolphin's  View  of  the  Admiral's  Jurisdiction,  London, 
1661,  p.  13.     Zouch,  Jurisdiction  of  the  Admiralty  of  England  asserted 
by  R.  Zouch,  D.  C.  L.,  late  Judge  of  the  Admiralty  Court,  p.  88:    (writ- 
ten before  1663,  published  1686).     Malynes'  Lex  Mercatoria,  p.  87,  1st 
edit.  1622;    3rd  edit.  1685. 

*  Cited  in  Zouch,  p.  88.     The  original  Spanish  version    (Twiss,  iv.), 
has  not  the  clause. 

4On  a  roll  of  12  Edw.  III.;  cited  in  Twiss,  i.  Pref.  pp.  32,  57. 


232     //.  .  FROM  THE  1100'S  TO   THE  1800'S 

his  Council,  for  the  purpose  of  maintaining  the  ancient  su- 
premacy of  the  Crown  over  the  Sea  of  England,  and  the  right 
of  the  Admiral's  office  over  it,  with  a  view  to  correct,  inter- 
pret, declare,  and  uphold  the  laws  and  statutes  made  by  the 
Kings  of  England,  his  ancestors,  in  order  to  maintain  peace 
and  justice  amongst  the  people  of  every  nation  passing 
through  the  sea  of  England,  and  to  punish  delinquents, 
"  which  laws  and  statutes  were  by  the  Lord  Richard,  formerly 
King  of  England,  on  his  return  from  the  Holy  Land,  cor- 
rected, interpreted  and  declared,  and  were  published  in  the 
Island  of  Oleron,  and  were  named  in  the  French  tongue,  '  la 
ley  Olyroun.' '  There  is  no  doubt  that  Richard  I.,  on  his 
return  from  Palestine  did  not  visit  the  Isle  of  Oleron,  and  all 
that  can  be  meant  is  therefore,  that  the  Laws  of  Oleron,  whose 
origin  we  have  seen,  were  promulgated  in  England  by 
Richard. 1  This  account  receives  confirmation  from  the  con- 
tents of  the  famous  "  Black -Book  of  the  Admiralty,"  which, 
having  disappeared  for  many  years,  was  at  length  found  at 
the  bottom  of  a  chest  of  private  papers  in  a  cellar.  It  con- 
tains: (1)  instructions  for  the  Admiral's  administrative 
duties  in  time  of  war ;  the  first  article  of  which  is :  2  "  when 
one  is  made 'Admi rail,"  he  must  first  ordain  deputies,  "  some 
of  the  most  loyall  wise  and  discreet  persons  in  the  Maritime 
law  (la  loy  maryne  et  anciens  coustumes  de  la  mer),"  (2) 
articles  of  war  for  the  King's  navy,  and  (3)  an  account  of 
the  Admiral's  jurisdiction  in  34  articles,  of  which  the  first 
24  are  identical  with  the  most  ancient  version  of  the  Rolls  of 
Oleron,  and  the  rest  are  peculiar  to  the  English  Admiralty, 
and  probably  the  result  of  the  conference  of  1339.  Another 
article  in  this  part : 3  "  Item  any  contract  made  between  mer- 
chant and  merchant  beyond  the  sea,  or  within  the  flood  marke, 
shall  be  tried  before  the  Admiral,  and  nowhere  else  by  the 
ordinance  of  the  said  King  Edward  I.  and  his  lords,"  appears 
to  furnish  the  origin  of  the  Admiral's  jurisdiction  in  civil 
suits,  which  probably  were  more  often  settled  informally  by 
the  merchants  in  the  seaport  towns  "  selon  la  ley  merchant." 
The  Admiral  took  his  oath  to  make  summary  and  full  proc- 
ess "  selon  la  ley  marine  et  anciennes  coustumes  de  la  mer."* 
1  Twiss,  i.  Pref.  58.  *  Twiss,  i.  3.  « Twiss,  i.  69.  « Twiss,  i.  169. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   233 

A  subsequent  treatise  on  procedure,  entitled  the  Ordo  Judici- 
orum,  is  Roman  in  character  and  terminology,  and  bears 
traces  of  being  written  by  a  civilian  of  the  School  of  Bologna.1 
Indeed,  as  many  of  the  judges  in  the  Court  of  Admiralty,  the 
deputies  of  the  Lord  High  Admiral,  were  clerics,  the  pro- 
cedure at  any  rate,  if  not  also  the  rules  of  the  Court,  was 
likely  to  become  Roman  in  character.  The  inquiry  of  1339, 
already  alluded  to,  was  entrusted  to  three  clerics,  the  Official 
of  the  Court  of  Canterbury,  the  Dean  of  St.  Maria  in  Ar- 
cubus,  and  a  Canon  of  St.  Paul's.2  By  an  Act  of  1403,  "  les 
dites  admiralles  usent  leur  leys  settlement  par  la  ley  d'Oleron 
et  ancienne  ley  de  la  mer,  et  par  la  ley  d'An-gleterre,  et  ne  mye 
par  custume,  no  par  nule  autre  manere,'  3  while  in  1406  under 
the  Admiralties  of  the  Beauforts,  the  jurisdiction  of  the  Ad- 
miralty Court  was  much  increased.4  It  is  not  therefore  won- 
derful 'that  under  Edward  VI.  the  answer  was  made  to  a 
French  envoy 6  "  that  the  English  Ordinances  for  Marine 
affairs  were  no  others  than  the  Civil  Laws,  and  certain  ancient 
additions  of  the  realm."  The  Black  Book  itself  has  an  ex- 
press reference  to  the  Roman  Law :  "  It  is  ordained  and  es- 
tablished for  a  custom  of  the  sea  that  when  it  happens  that 
they  make  jettison  from  a  ship,  it  is  well  written  at  Rome  that 
all  the  merchandise  contained  in  the  ship  ought  to  contribute 
pound  per  pound,"7  and  many  other  clauses  are  indirectly 
taken  from  the  same  source. 

The  foundations  of  Admiralty  Law  are  thus  to  be  found  in : 
(1)  the  Civil  Law,  (a)  as  embodied  in  the  Law  Merchant, 
especially  in  the  Laws  of  Oleron ;  (6)  as  introduced  by  subse- 
quent clerical  judges,  mainly  in  procedure;  (2)  in  subse- 
quent written  and  customary  rules,  adopted  in  view  of  the 
developments  of  commerce.  This  view  is  borne  out  by  the 
accounts  which  text  writers  give  of  the  nature  of  the  Law. 

Thus  Sergeant  Callis  says  (in  1622)  "  I  acknowledge  that 
the  king  ruleth  on  the  sea  by  the  Laws  Imperial,  as  by  the 

'Twiss,  i.  178.    The  title  is  Sir  T.  Twiss'  invention. 

'Twiss,  ii.  Pref.  42. 

3  5  Hen.  IV.  c.  7;   2  Hen.  V.  c.  6. 

4Spelman,  Glossarium,  sub  voce  Admirallus,  ed.  1687,  p.  16. 

'Zouch,  89. 

•Twiss,  i.  127. 

''Lex  Rhodia  de  jactu,  Dig.  14,  2,  1.    Twiss  has  a  wrong  reference. 


234      //.     FROM   THE  1100'S  TO   THE  1800'S 

Roll  of  Olcron  and  other ;  but  that  is  only  in  the  case  of  ship- 
ping and  for  merchants  and  mariners ; " l  on  which  Zouch 
remarks : 2  "  I  suppose  no  man  will  deny  that  the  Civil  and 
Imperial  laws,  the  Roll  of  Oleron  and  others  .  .  .  are  of  force 
in  the  Admiralty  of  England,"  and  again,3  "  the  kingdom  of 
England  is  not  destitute  of  Special  laws  for  the  regulating 
of  sea  businesses,  which  are  distinct  from  the  Common  laws 
of  the  realm,  as  namely,  the  Civil  laws  and.  others  of  which  the 
books  of  Common  law  take  notice  by  the  names  of  Ley  Mer- 
chant and  Ley  Manner  "  .  .  .  "  Businesses  done  at  sea  are 
to  be  determined  according  to  the  Civil  law,  and  equity 
thereof,  as  also,  according  to  the  customs  and  usages  of 
the  sea  .  .  .  for  instruments  made  beyond  the  sea  have  usu- 
ally clauses  relating  to  Civil  law  and  to  the  Law  of  the  Sea." 

This  work  of  Zouch's  was  written  in  reassertion  of  the 
privileges  of  the  Court  of  Admiralty  in  opposition  to  the  en- 
croachments of  the  Courts  of  Common  law,5  who  secured  for 
their  jurisdiction  cases  which  properly  fell  within  the  cogni- 
zance of  the  Admiralty,  by  the  fiction  that  the  contract  sued 
on  was  made  in  Cheapside,  whereas,  as  the  Civilians  gravely 
remarked,  a  ship  could  not  come  to  Cheapside  because  there 
was  no  water.  The  Common  Law  Courts  also  prohibited  the 
Admiralty  from  trying  certain  classes  of  cases;  on  which 
Zouch  says :  6  "It  may  be  thought  reasonable  that,  such  con- 
tracts being  grounded  upon  the  Civil  law,  the  law  amongst 
Merchants,  and  other  maritime  laws,  the  suits  arising  about 
the  same  should  rather  be  determined  in  those  courts,  where 
the  proceedings  and  judgments  are  according  to  those  laws, 
than  in  other  Courts,  which  take  no  notice  thereof." 

So  Selden  had  said  7  "  Juris  civilis  usus  ab  antiquis  saeculis 
etiam  nunc  retinetur  in  foro  maritime,  sen  Curia  Admiralita- 
tis,"  and  Duck:  8  "  Jus  autem  dicit  Admiralitas  ex  Jure  Civili 
Romanorum,  et  ejus  Curia  consuetudinibus."  9  Godolphin, 
writing  in  1661,  says  "  all  maritime  affairs  are  regulated 

'Reading  on  the  Statute  of  Sewert.    1st  ed.  1622.     Ed.  1686,  p.  42. 

'Zouch,  p.  95.          'Ibid.  p.  89.          *Ibid.  p.  118. 

*Coke,  iv.  134;  see  also  i.  f.  11  b.  "Civil  Law  in  certain  cases,  not 
only  in  Courts  Ecclesiastical,  but  in  the  Admiralty,  in  which  is  ob- 
served la  ley  Olyroun,  5  Rich.  I." 

•p.  103.        *ad  Fletam,  viii. 

•(1676)   ii.  8,  3,  24.  •  Godolphin,  p.  40. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   235 

chiefly  by  the  Imperial  laws,  the  Rhodian  laws,  the  Laws  of 
Oleron,  or  by  certain  peculiar  municipal  laws  and  constitu- 
tions, appropriated  to  certain  cities  bordering  on  the  sea,  or 
by  those  maritime  customs  .  .  .  between  merchants  and  mar- 
iners." ..."  The  Court  of  Admiralty  proceeds  according 
to  the  known  laws  of  the  land  and  the  ancient  established  Sea 
laws  of  England  with  the  customs  thereof,  so  far  as  they 
contradict  not  the  laws  and  statutes  of  the  realm."  1  ..."  A 
great  part  of  this  Fabric  is  laid  on  a  foundation  of  Civil  law 
...  a  law  allowed,  received,  and  owned  as  the  law  of  the 
Admiralty  of  England " 2  ...  though  "  It  is  most  true 
that  the  Civil  law  in  England  is  not  the  law  of  the  Land,  but 
the  law  of  the  Sea  ...  a  law,  though  not  the  law  of  Eng- 
land, not  the  Land  law,  but  the  Sea  law  of  England."  3 

Hale  in  1676,  with  his  usual  strong  feeling  against  the 
Civil  law,  sums  this  up  thus ;  4  "  The  Admiralty  Court  is  not 
bottomed  upon  the  authority  of  the  Civil  law,  but  hath  both 
its  power  and  jurisdiction  by  the  law  and  custom  of  the 
realm  in  such  matters  as  are  proper  for  its  cognizance.  This 
appears  by  their  process  .  .  .  and  also  by  those  customs  and 
law  maritimes  whereby  many  of  their  proceedings  are  directed, 
and  which  are  not  in  many  things  conformable  to  the  Civil  law 
.  .  .  also  the  Civillaw  is  allowed  to  be  the  rule  of  their  pro- 
ceedings, only  so  far  as  the  same  is  not  contradicted  by  the 
Statutes  of  this  realm,  or  by  those  maritime  laws  and  cus- 
toms, which  in  some  points  have  obtained  in  derogation  of  the 
Civil  laws." 

This  opinion  of  Lord  Male's,  though  apparently  incon- 
sistent with  the  dicta  previously  cited  is  not,  I  think,  so  in 
reality;  for  all  that  he  alleges  is  that  the  Civil  law  is  only 
law  in  England  by  the  authority  of  the  English  Crown,  and 
that  in  many  points  it  has  been  altered  and  modified  by  later 
decisions  and  enactments ;  and  both  of  these  propositions  are 
recognized  by  previous  writers. 

Blackstone  says  of  the  5  "  maritime  Courts  before  the  Lord 
High  Admiral,"  that  "  their  proceedings  are  according  to  the 

'Godolphin,  Pref.        *  Ibid,  p.  123.        "76  id,  p.  127. 

*  Hale,  Common  Law,  p.  40. 

•  Bl.  iv.  68. 


236     //.     FROM  THE  1100'S  TO   THE  1800'S 

method  of  the  Civil  law,  like  those  of  the  Ecclesiastical 
Courts."  .  .  .  l  "  The  proceedings  of  the  Courts  of  Admi- 
ralty bear  much  resemblance  to  those  of  the  Civil  law,  but  are 
not  entirely  founded  thereon;  and  they  likewise  adopt  and 
make  use  of  other  laws,  as  occasion  requires,  both  the  Rhodian 
laws,  and  the  laws  of  Oleron:  for  the  law  of  England  doth 
not  acknowledge  or  pay  any  deference  to  the  Civil  law  con- 
sidered as  such,  but  merely  permits  its  use  in  such  cases  where 
it  judges  its  determination  equitable,  and  therefore  blends  it 
in  the  present  instance  with  other  marine  laws;  the  whole 
being  corrected,  altered  and  amended  by  acts  of  parliament, 
and  common  usage;  so  that  out  of  this  composition,  a  body 
of  jurisprudence  is  enacted,  which  owes  its  authority  only  to 
its  reception  here  by  consent  of  the  Crown  and  people." 

On  the  criminal  jurisdiction  of  the  Court  of  Admiralty, 
Blackstone  alludes  to  the  disuse  of  its  old  procedure:2  — 
"  but  as  this  Court  proceeded  without  jury  in  a  manner  much 
conformed  to  the  Civil  law,  the  exercise  of  a  criminal  juris- 
diction there  was  contrary  to  the  genius  of  the  law  of  Eng- 
land ;  "  and  as,  owing  to  the  requirements  of  two  witnesses, 
gross  offenders  might  escape,  therefore  "  marine  felonies  are 
now  tried  by  commissioners  oyer  et  terminer  according  to  the 
law  of  the  land." 

The  procedure  and  practice  of  the  Court  of  Admiralty  was 
transferred  by  the  Judicature  Acts  to  the  Probate,  Admiralty 
and  Divorce  Division  of  the  High  Court  of  Justice,  except 
as  altered  by  subsequent  Orders  under  the  Act.  This  Divi- 
sion thus  unites  the  three  branches  of  English  law  in  which 
the  Civil  law  had  most  direct  and  acknowledged  influence,  the 
Testamentary  and  Matrimonial  Clerical  Jurisdictions,  and 
the  Jurisdiction  of  the  Admiralty,  which,  as  we  have  seen,  was 
partly  built  up  by  clerical  judges. 

On  the  subject  matter  of  Admiralty  law,  we  may  say  more 
in  the  next  section.  The  procedure  in  rem  against  a  ship, 
analogous  to  "  Noxa  caput  sequitur,"  the  institution  of  aver- 
age (Contributio) ,  Bottomry  (pecunia  trajectitia  vel  nauti- 
cum  foenus),  and  probably  charter  parties,  all  bear  traces  of 
Roman  origin. 

•Bl.  iii.  108.         *B1.  iv.  268. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   237 

5.  Roman  Law  in  the  Law  Merchant 

From  the  earliest  times  a  summary  mode  of  procedure 
appears  to  have  existed,  in  which  a  kind  of  rough  and  ready 
justice  was  exercised  in  mercantile  disputes  according  to  the 
usages  of  commerce.  As  early  as  Bracton  we  find  recognition 
of  this;  the  solemn  order  of  attachments  need  not  be  ob- 
served in  such  cases  "  propter  privilegium  et  favorem  mer- 
catorum;  "  1  and  a  summons  with  less  than  15  days'  notice 
may  be  adjudged  lawful,  "  propter  personas  qui  celerem  de- 
bent  habere  justitiam,  sicut  sunt  mercatores,  quibus  exhibe- 
tur  justitia  pepoudrous."  2  This  "  Court  of  Pipowder  "  is 
also  mentioned  in  the  Domesday  of  Ipswich,  where  besides  the 
"  pleas  yoven  to  the  lawe  maryne,"  there  are  also  "  pleas  be- 
tween straunge  folk  that  men  clepeth  pypoudrus,  shuldene  be 
pleted  from  day  to  day."  3  The  Court  of  Pipowders  in  1478 
was  a  Court  that  sat  from  hour  to  hour  administering  jus- 
.  tic'e  to  dealers  in  time  of  fair ; 4  according  to  Coke,  it  was 
to  secure  "  speedy  justice  done  for  advancement  of  trade," 
and  there  might  be  such  a  Court  by  custom  without  either 
fair  or  market.5 

Malynes,  in  his  curious  and  interesting  work  on  the  Lex 
Mercatoria,  speaks  of  "  the  law  Merchant,  that  is  accord- 
ing to  the  customs  of  merchants  .  .  .  which  concerning 
traffic  and  commerce  are  permanent  and  constant."  6  Coke 
states  that  7  "  the  merchant  strangers  have  a  speedy  recovery 
for  their  debts  and  other  duties,  per  legem  mercatoriam,  which 
is  a  part  of  the  Common  Law."  The  Court  of  the  Mayor  of 
the  Staple,  he  says, 8  "  is  guided  by  the  Law  Merchant  .  .  . 
merchant  strangers  may  sue  before  him  according  to  the  law 
merchant  or  at  the  Common  law.  .  .  .  This  Court  is  the 
Court  in  the  Staple  Market,  and  it  was  oftentimes  kept  at 
Calais,  and  sometimes  at  Bruges,  Antwerp  and  Middlebro', 

1  Br.  f.  444. 

*Br.  f.  334:    so  called  because  justice  was  done  while  the  dust  was 
still  on  the  foot,  or  before  it  could  be  shaken  off. 
*  Black  Book  of  Admiralty,  ed.  Twiss.    Rolls  Series,  ii.  23. 
4 17  Edw.  IV.  c.  2. 
8  Coke,  iv.  272. 

•Pub.  1622,  3rd  Edit.  1686;   pp.  2,  3. 
TCoke,  ii.  58;   see  i.  11,  b. 
•Coke,  iv.  237,  238. 


238      //.     FROM   THE  1100'S   TO   THE   1800' S 

therefore  it  was  necessary  that  this  Court  should  be  governed 
by  Law  Merchant."  Fortescue  also  mentions  that  in  certain 
Courts,  "  where  matters  proceed  by  Lawe  Merchaunt,  con- 
tracts or  bargains  among  merchants  in  another  realm  are 
proved  by  witnesses  "  1  (because  12  men  of  a  neighbouring 
county  cannot  be  obtained). 

Zouch  goes  into  the  matter  more  at  length.2  Sir  John 
Davies,  he  says,  owns  the  Law  Merchant  as  a  law  distinct  from 
the  Common  law  of  England  in  a  MS.  Tract,  where  he  affirms 
"  that  both  the  Common  Law  and  Statute  Laws  of  England 
take  notice  of  the  Law  Merchant,  and  do  leave  the  Causes  of 
Merchants  to  be  decided  by  the  rules  of  that  law,  .  .  .  which 
is  part  of  the  Law  of  Nature  and  Nations,"  "  whereby  it  is 
manifest,"  continues  Zouch,  "  that  the  cases  concerning  mer- 
chants are  not  now  to  be  decided  by  the  peculiar  and  ordinary 
laws  .of  every  country,  but  by  the  general  Laws  of  Nature  and 
nations.  Sir  J.  Davies  saith  further,  '  That  until  he  under- 
stood the  difference  between  the  Law  Merchant,  and  the  Com- 
mon law  of  England,  he  did  not  a  little  marvel  what  should 
be  the  cause  that  in  the  Books  of  the  Common  law  of  England 
there  are  to  be  found  so  few  cases  concerning  merchants  and 
ships,  but  now  the  reason  was  apparent,  for  that  the  Common 
law  did  leave  those  cases  to  be  ruled  by  another  law,  the  Law 
Merchant,  which  is  a  branch  of  the  Law  of  Nations.' ' 

Again  Zouch  says :  3  "  For  the  advantage  of  those  who  use 
navigation  and  trade  by  the  sea,  the  Law  Merchant  and  laws 
of  the  Sea  4  admit  of  divers  things  not  agreeable  to  the  Com- 
mon law  of  the  realm,"  and  he  cites  instances  and  continues : 
"  It  is  not  hereby  intended  that  the  Courts  of  Common  law 
cannot  or  do  not  take  notice  of  the  Law  Merchant  in  mer- 
chants' cases,  but  that  other  things  likewise  considered,  it 
might  be  thought  reasonable  to  allow  them  the  choice  of  that 
Court  where  the  Law  Merchant  is  more  respected,  than  to 
confine  them  to  other  Courts,  where  another  law  is  more  pre- 
dominant. Besides  there  may  be  danger  of  doubt  thereof, 
because  those  things  are  not  approved  of  for  proofs  at  the 

lDe  Laudibug,  p.  74,  ed.  1616:    Selden  on  Fortescue,  ibid. 

'Zouch,  p.  89.     See  Godolphin,  p.  128. 

»p.  128. 

*i.  e.  the  written  laws  of  Oleron,  etc. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   239 

Common  law,  which  are  held  sufficient  in  the  Admiralty  among 
the  merchants." 

Blackstone  defines  very  clearly  the  position  of  the  Law 
Merchant  in  his  time ; 1  "  for  as  the  transactions  of  foreign 
trade  are  carried  on  between  subjects  of  independent  states, 
the  municipal  laws  of  one  will  not  be  regarded  by  the  other. 
For  which  reason  the  affairs  of  commerce  are  regulated  by  a 
law  of  their  own,  called  the  Law  Merchant  or  Lex  Mercatoria, 
which  all  nations  agree  in  and  take  notice  of ;  and  in  particu- 
lar it  is  held  to  be  part  of  the  law  of  England,  which  decides 
the  causes  of  merchants  by  the  general  rules  which  obtain  in 
all  commercial  countries,  and  that  often  even  in  matters  relat- 
ing to  domestic  trade,  as  for  instance  in  the  drawing,  accept- 
ance and  transfer  of  inland  bills  of  Exchange."  And  again : 
"  thus  in  mercantile  questions,  such  as  bills  of  exchange  and 
the  like;  in  all  marine  causes  relating  to  freight,  average, 
demurrage,  bottomry,  insurances,  and  others  of  a  similar 
nature,  the  law  merchant,  which  is  a  branch  of  the  law  of 
nations,  is  regularly  adhered  to."  2 

Now  this  Law  Merchant,  thus  recognized  by  the  laws  of 
England,  drew  part  of  its  matter  from  the  Civil  law.  Being 
"  part  of  the  law  of  nations,"  in  that  it  was  composed  of  the 
customs  of  merchants  of  all  nations,  it  included  a  number  of 
usages  which  were  relics  of  the  Civil  law,  continuing  the 
practice  of  the  coasts  of  the  Mediterranean.  Again,  the 
written  laws  of  the  sea,  the  Consolato  and  the  laws  of  Oleron, 
which  formed  part  of  the  Law  Merchant,  and  the  latter  of 
which  was  expressly  embodied  in  the  laws  of  England,  were 
based  on  the  Civil  law,  with  such  additions  as  were  necessary 
to  meet  the  needs  of  the  time.  Thus  Duck  is  justified  in 
speaking  of  the  "  Curia  Mercatorum,  in  qua  lites  de  con- 
tractibus  mercatorum  ex  aequo  et  bono  secundum  jus  civile 
Romanorum  terminandae  swnt." '  Indeed  even  at  that  time 
the  Civil  law  was  recognized  as  an  authority,  where  usage  was 
uncertain.  Malynes  records  a  case  with  which  he  was  per- 
sonally acquainted,  where  an  unfortunate  merchant  uninten- 
tionally guaranteed  the  solvency  of  another,  and  "  the  opinion 
of  merchants  was  demanded,  whereon  there  was  grand  diver - 
1  Bl.  i.  273.  *  Bl.  iv.  67.  8  ii.  8,  3,  25. 


240      //.     FROM   THE  1100'S  TO   THE  1800'S 

sity,  so  that  the  Civil  law  was  to  decide  the  same,"  and  it  was 
decided  by  the  Digest. l 

This  Lex  Mercatoria  had  therefore  a  Roman  foundation; 
and  the  importance  of  this  will  be  seen  when  we  remember  that 
Lord  Mansfield,  the  father  of  modern  Mercantile  law,2  during 
the  32  years  in  which  he  was  Lord  Chief  Justice  of  the  King's 
Bench,3  constructed  his  system  of  Commercial  law  by  mould- 
ing the  findings  of  his  special  juries  as  to  the  usages  of  mer- 
chants (which  had  often  a  Roman  origin)  on  principles  fre- 
quently derived  from  the  Civil  law  and  the  law  of  nations. 
One  among  Junius'  bitter  attacks  on  him  expressly  alludes  to 
this  feature  of  his  :4  "  In  contempt  or  ignorance  of  the  Com- 
mon law  of  England,  you  have  made  it  your  study  to  intro- 
duce into  the  Court  where  you  preside,  maxims  of  juris- 
prudence unknown  to  Englishmen.  The  Roman  code,  the 
law  of  nations,  and  the  opinions  of  foreign. civilians,  are  your 
perpetual  theme ;  "  a  charge  for  which,  says  Lord  Campbell,5 
"  there  is  not  the  slightest  colour  of  pretence.  He  did  not 
consider  the  Common  law  of  England  ...  a  perfect  code 
adapted  to  the  expanded,  diversified,  and  novel  requirements 
of  a  civilised  and  commercial  nation  .  .  .  but  in  no  instance 
did  he  ever  attempt  to  substitute  Roman  rules  and  maxims 
for  those  of  the  Common  law.  He  made  ample  use  of  the 
compilations  of  Justinian,  but  only  for  a  supply  of  principles 
to  guide  him  upon  questions  unsettled  by  prior  decisions  in 
England;  deriving  also  similar  assistance  from  the  law  of 
nations,  and  the  modern  Continental  codes."  The  nature  of 
his  work  was  well  described  by  Buller,  J.  in  his  celebrated 
judgment  in  Lickbarrow  v.  Mason, G  where  he  says  concern- 
ing bills  of  lading :  "  thus  the  matter  stood  till  within  these 
30  years;  since  that  time  the  Commercial  law  of  this 
country  has  taken  a  very  different  turn  from  what  it  did 
before.  .  .  .  Before  that  period  we  find  that  in  Courts  of  law 

>p.  69. 

*Park  on  Insurance,  Lond.  1787,  7th  edit.,  Int.  pp.  43-48.  Lowndes  on 
Insurance,  Int.  p.  27;  Campbell's  Lives,  Vol.  ii. 

» 1756-1 788. 

« Cited  in  Campbell,  ii.  437. 

«76irf.  p.  438,  439. 

•1787,  2  T.  R.  63,  73;  see  also  Lowndes  on  General  Average,  Pref.  3rd 
edit.  p.  45. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE  241 

all  the  evidence  in  mercantile  cases  was  thrown  together :  they 
were  left  generally  to  a  jury,  and  they  produced  no  estab- 
lished principle.  From  that  time  we  all  know  the  great 
study  has  been  to  find  some  certain  general  principles  .  .  . 
not  only  to  rule  the  particular  case  then  under  considera- 
tion, but  to  serve  as  a  guide  for  the  future.  Most  of  us 
have  heard  those  principles  stated,  reasoned  upon,  enlarged 
and  explained  till  we  have  been  lost  in  admiration  at  the 
strength  and  stretch  of  the  human  understanding.  And  I 
should  be  sorry  to  find  myself  under  a  necessity  of 
differing  from  Lord  Mansfield,  who  may  truly  be  said 
to  be  the  founder  of  the  Commercial  law  of  this  coun- 
try." An  example  of  Lord  Mansfield's  use  of  the  Civil  law 
will  be  seen  in  his  exposition  of  the  nature  of  the  equitable 
action  for  money  had  and  received,  which  can  be  traced,  pas- 
sage by  passage,  to  the  Corpus  Juris:1  and  many  of  these 
usages  of  the  merchants,  which  he  thus  harmonized,  had  their 
origin  in  the  Roman  law  though  their  details  were  of  modern 
growth. 

Thus  the  law  of  General  Average,  as  developed  by  the 
Courts,  appears  to  rest  upon  a  Roman  foundation.  Mr. 
McLachlan  even  assigns  a  Roman  origin  to  the  name,  deriving 
it  from  actio  ex  aversione,2  though  this  origin  is  challenged 
by  Mr.  Lowndes  and  seems  rather  fanciful.  The  Rhodian 
law:3  "  Si  levandae  navis  gratia,  jactus  mercium  factus  est, 
omnium  contributione  sarciatur  quod  pro  omnibus  datum  est," 
really  contains  the  whole  principle  of  general  average,  though 
it  restricts  the  example  to  Jettison.  The  Corpus  Juris  ex- 
panded it  to  cover  other  cases,  such  as  cutting  away  the  mast, 
"  removendi  communis  periculi  causa."  But  these  laws  fell 
into  desuetude,  though  the  practice  of  contribution  may  have 
survived  in  the  Mediterranean.  Some  slight  reference  to  it 
appears  in  the  laws  of  Oleron,  but  the  old  Sea  laws  only 
recognize  two  cases  of  average,  jettison  and  cutting  away 

1Moses  v.  McFerlane,  2  Burr.  1005.  1  W.  Bl.  219;  see  this  set  out  in 
Warren's  Law  Studies,  pp.  1353,  1354  from  Evans'  translation  of  Pothier 
deg  Obligations,  ii.  379,  380. 

•McLachlan's  Arnould  on  Insurance,  5th  ed.,  pp.  882-885.  Lowndes, 
General  Average,  3rd  edit.,  pp.  270-272. 

3  Dig.  14,  2,  1.    See  Lowndes,  Int.  pp.  45,  46.    Ibid.  p.  256. 


242     //.     FROM  THE  1100'S   TO   THE   1800'S 

a  mast.  The  first  express  definition  of  "  commune  avarie  " 
appears  in  the  Guidon  de  la  Mer,  about  1560: 1  and  a  fuller 
one  is  found  in  the  French  Ordonnance  of  1681.  In  1801  a 
Court  of  Common  law  first  recognizes  and  discusses  the  right 
to  recover  at  Common  law  general  average  contributions.2 
Lawrence,  J.  defines  a  general  average  loss  as  "  all  loss  which 
arises  in  consequence  of  extraordinary  sacrifices  made,  or  ex- 
penses incurred,  for  the  preservation  of  the  ship  and  cargo," 
and  this  "  must  be  borne  proportionably  by  all  who  are  inter- 
ested." 3  Since  then  the  law  on  the  subject,  probably  founded 
on  the  Rhodian  and  Roman  law,  and  expanded  by  mercantile 
usage  in  all  countries,  is  still  undergoing  development  in  the 
Courts ; 4  though  in  the  last  reported  case,  the  Master  of  the 
Rolls  rejected  the  idea  that  the  law  of  England  should  be 
brought  into  consonance  with  the  laws  of  all  other  countries ; 
"  no  English  Court  has  any  mission  to  adapt  the  law  of  Eng- 
land to  the  laws  of  other  countries ;  it  has  only  authority  to 
declare  what  the  law  of  England  is."  5  But  the  law  of  Eng- 
land on  these  points  was  originally  the  Law  Merchant,  the 
same  in  all  commercial  countries ;  and  the  agreement  of  all 
foreign  countries  in  a  rule  of  the  Law  Merchant  would  then 
have  been  evidence  of  its  being  part  of  the  law  of  England, 
or  rather  of  a  Code  which  the  English  Courts  would  recognize 
and  enforce. 

Lord  Mansfield's  greatest  work  was  done  in  the  develop- 
ment of  the  law  of  Insurance ;  and  here,  though  he  gave  form 
and  coherence  to  the  Law  Merchant,  it  does  not  seem  that 
that  law  can  be  traced  to  Roman  sources.  Its  Roman  origin 
has  indeed  been  suggested;  Zouch,  for  example,  says:6 
"  Policies  of  Insurance  are  grounded  upon  the  Civil  law  .  .  . 
which  as  Malynes  affirms  were  taken  up  in  this  kingdom  from 
the  laws  of  Oleron : "  but  the  most  recent  authorities  hold 

1  Lowndes,  275. 

1  Birkley  v.  Presgrave,  1  East,  228.     Lowndes,  pp.  1,  276;    Int.  p.  48. 

*  cf.  the  Ordonnance;    les  despenses  extraordinaires  faites,  ft  le  dom- 
tnage  souffert,  pour  le  bien  et  le  salut  commun  des  marchandises  et  du 
vaifseau  sont  ovaries  grosses  et  communes. 

*cf.  Atwood  v.  Sellar,  5  Q.  B.  D.  286,  Wright  v.  Marwood,  7  Q.  B.  D. 
62,  Svendten  v.  Wallace,  11  Q.  B.  D.  616,  13  Q.  B.  D.  69.  10  App.  C. 
404 

•  13  Q.  B.  D.  73.          «  p.  103. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   243 

that,  though  there  is  almost  an  entire  lack  of  evidence  con- 
cerning it  till  the  publication  of  the  Guidon  (circa  1560),  it 
probably  originated  about  1200  A.  D.  with  the  Italians,  and 
was  introduced  into  England  by  Lombard  merchants.1  Under 
Queen  Elizabeth  a  special  Court  was  constituted  to  try  Lon- 
don Policies  of  Insurance,  and  it  is  noteworthy  that  it  was  to 
consist  of  the  Judge  of  the  Admiralty,  the  Recorder  of  Lon- 
don, two  Doctors  of  the  Civil  Law,  two  common  lawyers,  and 
eight  merchants. 2  The  Court  fell  into  disuse,  but  its  compo- 
sition shows  the  view  that  Insurance  was  part  of  the  subject- 
matter  of  the  Law  Merchant,  which  in  its  turn  was  connected 
with  the  Civil  law.  Apart  from  this,  there  is  no  trace  of 
Roman  influence  in  the  English  law  of  Insurance. 

The  Roman  pecunia  trajectitia  3  was  a  loan  of  money  with 
which  merchandise  was  bought  and  shipped,  being  at  the 
risk  of  the  lender  till  the  goods  reached  their  destination. 
The  interest  on  the  loan  was  originally  unlimited  but  was  re- 
stricted by  Justinian  to  12  per  cent.4  And  though  the 
Roman  law  fell  into  oblivion,  the  institution  appears  to  have 
survived  in  the  Bottomry  and  Respondentia  of  the  Law  Mer- 
chant. By  a  Bottomry  Bond,5  the  master  under  stress  of 
necessity  borrows  money  for  the  prosecution  of  his  voyage  on 
the  security  of  the  ship,  to  be  repaid  with  maritime  interest 
if  the  ship  arrives  in  safety ;  Respondentia  is  a  similar  loan  on 
the  security  of  the  cargo,  its  repayment  being  also  dependent 
on  safe  arrival.  Neither  of  these  is  quite  the  same  as  Pecunia 
Trajectitia,  which  was  rather  an  original  venture  by  a  mer- 
chant dependent  on  the  safe  arrival  of  the  ship,  than  a  loan 
to  the  master,  made  under  necessity,  to  enable  a  voyage 
already  begun  to  be  prosecuted.  But  Malynes  expressly  calls 
Bottomry,  pecunia  trajectitia,  while  he  also  alludes  -to  a 
transaction  precisely  similar  to  the  Roman  one,  as  "  a  deliver- 
ance of  money  of  the  nature  of  Usura  Maritima."  6  The 
"  darkness  of  an  earlier  age "  7  prevents  us  from  tracing 

*Park  on  Insurance,  Int.  pp.   10-19.     Lowndes  on  Insurance,  Lond. 
1881,  Int.  pp.  19-21. 

»Park,  Int.  p.  40.     43  Eliz.  c.  12. 

'Dig.  22,  2,  1-5. 

'Cod.  4,  32,  26. 

8  McLachlan,  Merchant  Shipping,  3rd  ed.  pp.  51-65. 

•p.  122.  'McLachlan,  p.  65. 


244      //.     FROM   THE   1100'S   TO   THE   1800' S 

what  connexion  the  later  institution  has  with  the  Roman  one, 
but  it  seems  probable  that  the  latter  survived,  and  was  modi- 
fied and  adapted  into  the  Bottomry  of  to-day. 

The  Admiralty  Court  endeavoured  to  introduce  the  Civilian 
doctrine  of  a  tacit  hypothec  of,  or  maritime  lien  upon,  the  ship 
herself  for  repairs  or  the  supply  of  necessaries  without  any 
express  Bottomry  bond.  Lord  Stowell  said : l  "  In  most  of 
those  countries  governed  by  the  Civil  law,  repairs  and  neces- 
saries form  a  lien  upon  the  ship  herself.  In  our  country  the 
same  doctrine  had  for  a  long  time  been  held  by  the  Maritime 
Courts,  but  after  a  long  contest,  it  was  finally  overthrown  by 
the  Courts  of  Common  law,  and  by  the  House  of  Lords  in  the 
reign  of  Charles  II. :  "  and  Lord  Holt  also,  no  opponent  of 
the  Civil  law,  held  that:2  "  By  the  Maritime  law  every  con- 
tract of  the  master  implies  a  hypothecation,  but  by  the  Com- 
mon law  it  is  not  so,  unless  it  be  so  expressly  agreed." 

Zouch  suggests  that  Charterparties  are  derived,  through 
the  Roman,  from  the  Rhodian  law;3  *'  Si  quis  navem  condux- 
erit,  instrumenta  consignata  sunto,"  and  Malynes,  who  cites 
other  Rhodian  rules  as  in  force  in  the  Law  Merchant,  also 
says  that  charterparties  of  his  time  (1622)  commonly  de- 
clared that  they  were  in  all  things  made  according  to  the  laws 
of  Oleron;4  the  provision  as  to  the  forfeiture  of  double 
earnest  by  the  Master,  "  if  he  repent,"  is  clearly  Roman. 
But  in  this,  as  in  most  other  heads  of  the  Law  Merchant,  we 
can  only,  speculate  whether  Roman  customs,  developed  by 
Mediterranean  nations,  have  furnished  the  groundwork  on 
which  the  Courts  and  the  merchants  of  England  have  built 
their  Mercantile  law.  The  law  of  Bills  of  Exchange,  which 
owes  most  of  its  material  to  the  Law  Merchant,  appears  en- 
tirely free  from  Roman  influence,  the  usages  of  merchants 
which  it  embodies  being  of  much  later  origin.  We  must 
therefore  rest  content  with  pointing  to  the  Law  Merchant,  as 
a  probable  source  of  Roman  influence  on  the  English  law, 
while  the  lack  of  evidence  does  not  allow  us  to  estimate  the 
amount  of  that  influence. 

1  Zodiac  (1825).     1  Haggard,  Adm.  325. 

*  Justin  v.  Ballam  (1702).    1  Salk.  34.    2  Lord  Raymond,  805. 

»p.  102. 

*pp.  98,  99. 


7.    SCRUTTON:  ROMAN  LAW  INFLUENCE   245 

The  position  of  the  Law  Merchant,  or  of  "  the  general 
maritime  law,"  in  this  country  has  been  under  discussion  in  a 
series  of  cases,  other  than  Svendsen  v.  Wallace,1  down  to 
1882.  In  1801  Lord  Stowell,  discussing  the  powers  of  the 
master  to  give  Bottomry  Bonds,  referred  repeatedly  to  "  the 
general  maritime  law,"  saying  in  one  place:  2  "  a  very  modern 
regulation  of  our  own  private  law  .  .  .  has  put  an  end  to 
our  practice  of  ransoming  .  .  .  but  I  am  speaking  of  the 
general  maritime  law  and  practice,  not  superseded  by  private 
and  positive  regulation ;  "  and  again :  "  Adverting  to  the 
authority  of  the  maritime  law,  as  it  has  been  for  some  years 
practised  in  this  Court  .  .  .  adverting  also  to  the  position  of 
what  I  may  call  the  Lex  Mercat oria."  3  In  the  Hamburg* 
(1864),  also  on  the  conflict  of  laws  as  to  bottomry,  Dr.  Lush- 
ington  announced  his  intention  of  "  governing  his  judgment 
by  reference  to  the  ordinary  maritime  law  ...  no  specific 
law  being  alleged  as  the  governing  law  "  ..."  I  must  take 
the  law  which  ought  to  apply  to  this  case  to  be  the  maritime 
law  as  administered  in  England,"  while  the  Privy  Council  on 
appeal 5  "  entirely  agree  with  the  learned  Judge  that  the 
case  is  to  be  decided  by  the  general  maritime  Law  as  admin- 
istered in  England."  This  expression  was  criticized  by 
Willes,  J.,  in  a  case  in  1865,6  where  the  "  general  maritime 
law,  as  regulating  all  maritime  transactions  between  persons 
of  different  nationalities  at  sea,"  was  suggested  as  one  of  the 
laws  by  which  the  decision  should  be  governed ;  he  said : 7 
"  We  can  understand  this  term  in  the  sense  of  the  general 
maritime  law  as  administered  in  English  Courts,  that  being 
in  truth  nothing  more  than  English  law,  though  dealt  out  in 
somewhat  different  measures  in  the  Common  law  and  Chancery 
Courts  and  in  the  peculiar  jurisdiction  of  the  Admiralty;  but 
as  to  any  other  general  maritime  law  by  which  we  ought  to 
adjudicate  upon  the  rights  of  a  subject  of  a  country,  which 
by  the  hypothesis,  does  not  recognize  its  alleged  rule,  we  were 
not  informed  what  may  be  its  authority,  its  limits,  or  its  sanc- 

1 13  Q.  B.  D.  69. 

1  The  Gratitudine,  3  W.  Rob.  240,  259. 

'Ibid.  p.  271.        <Br.  and  Lush,  259.          'Ibid.  272. 

•Lloyd  v.  Ouibert,  L.  R.  1  Q.  B.  115,  119. 

TZ/.  R.  1  Q.  B.  p.  123. 


246     //.    FROM  THE  1100'S  TO   THE  1800'S 

tion."  ..."  It  would  be  difficult  to  maintain  that  there  is 
any  general  in  the  sense  of  universal  law,  binding  at  sea,  any 
more  than  upon  land,  nations  which  either  have  not  assented 
or  have  withdrawn  their  assent  thereto  "...  and  further 
on  he  speaks  of  "  the  general  maritime  law  as  administered 
in  England,  or  (to  avoid  periphrasis)  the  law  of  England."  l 
This  series  of  cases  came  before  the  Court  of  Appeal  in  '1882, 
in  a  case.2  which  Sir  R.  Phillimore  had  decided  by  "  the 
general  maritime  law  as  administered  in  England ; "  3  and 
in  reversing  his  decision  Brett,  L.  J.  said : 4  "  what  is  the  law 
which  is  administered  in  an  English  Court  of  Admiralty, 
whether  English  law,  or  that  which  is  called  the  Common 
maritime  law,  which  is  not  the  law  of  England  alone,  but  the 
law  of  all  maritime  countries.  .  .  .  The  law  which  is  admin- 
istered in  the  English  Court  of  Admiralty  is  the  English 
maritime  law.  It  is  not  the  ordinary  municipal  law  of  the 
country,  but  it  is  the  law  which  the  English  Court  of  Ad- 
miralty, either  by  Act  of  Parliament,  or  by  reiterated  deci- 
sions and  traditions  and  principles,  has  adopted  as  the  Eng- 
lish maritime  law." 

It  is  not  inconsistent  with  these  decisions  that  the  Law 
Merchant  is  recognized  whenever  a  special  jury  "  finds  "  a 
custom  of  merchants,  which  is  acted  on  by  the  Courts ;  for 
the  law  of  England  recognizes  such  customs  because  they 
comply  with  rules  it  has  previously  laid  down,  and  decides  that 
they  were  law  as  complying  with  its  rules,  and  not  from  any 
merit  of  the  Law  Merchant.  But  in  this  way  the  usages  of 
merchants  still  influence  the  law  of  England.  .  .  . 

6.  Conclusion        « 

This  inadequate  sketch  of  the  influence  of  the  Roman  Law 
on  the  Law  of  England  has  now  reached  its  close.  We  have 
seen  that  English  law  in  its  earliest  stages  is  almost  entirely 
Teutonic,  and  that  those  who  claim  for  it  descent  from  the 
laws  and  customs  of  the  Roman  occupation  are  unable  to 
support  their  case  by  any  satisfactory  evidence.  The  most 
plausible  of  these  theories  is  that  which  refers  manorial  insti- 

*L.  R.  1  Q.  B.  p.  125. 

*  Gaetano  e.  Maria,  L.  R.  7  P.  D.  1,  137. 

•Ibid.  p.  4.         '76 id.  p.  143. 


7.     SCRUTTON:  ROMAN  LAW  INFLUENCE   247 

tutions  to  a  mingled  Roman  and  South  German  origin,  and 
even  this  at  present  lacks  any  certain  foundation.  The  intro- 
duction of  wills  and  charters  comes  from  clerical  and  Roman 
sources,  but  except  in  this  respect  we  cannot  say  that  the 
influence  of  the  Civil  Law  has  in  any  way  affected  the  Law  of 
England  until  the  coming  of  Vacarius. 

The  latter  half  of  the  twelfth  century  revives  the  study  of 
Justinianean  law  throughout  Europe,  and  England  also 
shares  in  the  revival.  The  Ecclesiastical  Courts  rule  them- 
selves by  the  Roman  Law,  and  from  their  proceedings  Roman 
influences  affect  the  work  of  Glanvil.  Bracton's  great  treatise 
contains  much  Roman  matter  and  terminology,  but  his  knowl- 
edge of  the  civil  law  was  only  that  of  every  clerical  judge, 
(and  they  were  many),  of  his  century.  The  full  extent  of 
their  influence  can  only,  even  imperfectly,  be  traced  by  a  de- 
tailed study  of  the  Year-Books,  a  task  far  beyond  our  present 
powers ;  but  it  is  clear  that  the  revival  was  followed  by  a  re- 
action. The  Roman  Law  became  not  only  a  subject  of  dis- 
trust, owing  to  the  conflicts  between  King  and  Pope ;  it  even 
dropped  into  oblivion.  With  Coke,  Hale,  and  Blackstone, 
while  there  is  knowledge  of  the  Law  of  Rome,  there  is  also 
a  clear  definition  of  its  position,  as  of  no  force  in  England, 
unless  as  adopted  by  the  English  law,  or  in  particular  courts 
where  its  authority  was  recognized  by  English  jurisprudence. 
In  those  courts  we  have  traced  its  history ;  in  the  Ecclesias- 
tical Courts  in  their  jurisdiction  over  marriages  and  succes- 
sion at  death,  in  the  Admiralty  Courts,  proceeding  according 
to  the  Civil  Law  and  the  Law  of  the  Sea,  and  in  the  influence 
of  the  Law  Merchant  on  both  the  Admiralty  and  the  Common 
Law;  and  we  have  referred  though  briefly  to  some  of  the 
points  in  which  the  Common  Law  itself  has  been  affected  by 
the  Law  of  Rome.1 

That  the  history  of  Roman  Law  in  England  has  yet  to  be 
written,  no  one  is  more  conscious  than  the  author  of  this 
Essay;  he  can  only  hope  for  an  indulgence,  proportioned  to 
the  difficulties  of  the  task,  in  the  attempt  to  gather  together 
some  of  the  materials  for  such  a  history. 

1  [Compare  the  Essays  in  Volume  II  under  Ecclesiastical  Courts, 
Equity,  and  Commercial  Law;  and  Maitland's  Bracton  and  Azo  (Selden 
Society).— EDS.] 


8.     THE  HISTORY  OF  THE   CANON  LAW  IN 
ENGLAND  ' 

BY  WILLIAM  STUBBS  2 

I 

IT  requires  no  small  amount  of  moral  courage  to  approach 
a  subject  of  legal  history  without  being  either  a  lawyer 
or  a  philosopher.  A  lawyer,  no  doubt,  would  make  short 
work  of  it,  and  pronounce  a  definitive  judgment,  without  mis- 
giving, on  any  subject,  historical  or  other,  human  or  divine, 
on  which  he  had  evidence  before  him;  and  a  philosopher 
would  systematise  to  his  own  satisfaction  any  accumulation 
of  details  thart  could  possibly  be  referred  to  the  categories 
of  cause  and  effect.  The  student  of  history  has  not,  ex 
officio,  any  such  privilege  of  infallibility;  the  highest  point 
to  which  he  can  rise  is  the  entire  conviction  of  his  own 
ignorance  and  incapacity  before  the  vast  material  of  his 
investigation;  the  highest  approach  to  infallibility  is  the 
willingness  to  learn  and  correct  his  own  mistakes.  If  he 
wishes  to  learn  something  of  a  subject,  his  best  policy  is  to 
write  a  book  upon  it,  or  to  deliver  two  public  statutory 

1  This  essay  is  taken  from  "  Lectures  on  the  Study  of  Mediaeval  and 
Modern  History,"  1887,  pp.  335-381  (Oxford,  Clarendon  Press).  These 
two  lectures  were  delivered  on  April  19  and  20,  1882. 

*  1825-1901.  A.  B.,  Christ  Church  College,  Oxford;  Fellow  of  Trinity 
College,  1847;  Regius  Professor  of  History  at  Oxford,  1866;  Curator 
of  the  Bodleian  Library,  1869;  Canon  of  St.  Paul's,  1879;  Bishop  of 
Chester,  1884;  Bishop  of  Oxford,  1889. 

Other  Publications:  Select  Charters  of  English  Constitutional  His- 
tory, 1870;  Constitutional  History  of  England,  1874-1878;  Councils  and 
Ecclesiastical  Documents  relating  to  Great  Britain  and  Ireland  (with 
Mr.  Haddan),  1869-1878;  Documents  Illustrative  of  English  History, 
1874;  Historical  Introductions  to  the  Rolls  Series,  1902. 

With  the  essay  here  printed  should  be  compared  Professor  Mait- 
land's  volume  on  "Canon  Law  in  England"  (1898),  and  Mr.  Holds- 
worth's  chapter  on  the  Ecclesiastical  Courts,  in  his  "  History  of  English 
Law,"  reprinted  in  Volume  II  of  the  present  Essays. 

248 


8.     STUBBS:    THE    CANON   LAW  249 

lectures.  Here  then  you  have  my  motive;  wanting  to  know 
something  of  the  history  of  Canonical  Jurisprudence,  I 
undertake  to  lecture  upon  it.  I  shall  be  wiser,  that  is,  more 
convinced  of  my  own  ignorance,  before  I  have  done. 

If  I  were  a  philosopher  I  should  begin  thus:  The  legal 
history  of  a  nation  or  institution  must  be  the  history  of  the 
successive  stages  by  which  it  develops  or  adopts  laws,  ac- 
cording to  the  stages  of  its  social,  or  moral,  or  political,  or 
religious  development;  or  thus:  As  a  nation  develops  in 
civilisation,  or  foreign  policy,  or  in  specialised  ambitions,  or 
in  consciousness  of  nationality,  or  in  peculiar  constitutional 
identity,  it  has  to  develop  new  branches  or  systems  of  law, 
or  to  borrow  them  ready-made  from  nations  whose  polity  is 
in  advance  of  its  own,  who  have  made  themselves  repre- 
sentative nations  in  the  particular  branch  of  sociology  in 
which  it  desires  to  regulate  itself.  Hence,  in  England,  on 
the  original  superstructure  of  ancient  popular  law  is  super- 
induced, in  the  age  of  the  Conquest,  the  jus  honorarium  of 
the  royal  courts ;  and,  when  the  royal  courts  have  become 
the  courts  of  common  law,  on  their  rigour  is  superinduced 
the  moderating  influence  of  Equity  and  Appeal:  on  the 
conversion  of  the  nation  to  Christianity  a  religious  discipline 
is  a  necessity,  and  on  that  religious  discipline,  as  the  frame- 
work of  the  Church  is  built  up,  there  is  based  a  canonical 
jurisprudence;  if  the  nation  is  in  close  communication  with 
foreign  churches  or  a  great  Catholic  religion,  it  naturally 
adopts,  from  them  or  it,  its  religious  legislation ;  if  not  in 
such  close  intercourse,  it  develops  a  system  of  its  own,  and, 
when  the  intercourse  becomes  closer,  modifies  its  own  until 
it  is  more  or  less  in  harmony  with  that  of  the  nations  round 
it,  always  retaining  more  or  less  of  its  own  home  growth. 
Or  again,  still  as  the  philosopher,  I  might  say:  Religion, 
Law  and  Morality  cover  the  area  of  human  action  with 
rules  and  sanctions,  and,  with  different  origins,  motives,  and 
machinery,  regulate  regions  of  common  energy,  a  number  of 
acts  that  fall  within  reach  of  each  or  all.  The  fact  that  they 
spring  from  different  sources  necessitates  the  formation  of 
distinct  systems;  the  fact  that  they  cover  the  same  ground 
accounts  for  the  possibility  of  conflicting  operation ;  the  fact 


250     //.     FROM    THE   1100'S    TO    THE   1800'S 

that,  whilst  they  overlap  one  another,  their  proper  areas 
nowhere  coincide,  necessitates  some  sort  of  definition  and 
limitation  of  the  scope  and  system  of  each,  which  definition 
and  limitation  must  be  supplied  either  by  a  concordat  between 
them  or  by  the  subordination  of  one  to  the  other.  And  once 
more:  within  the  region  of  religious  activity  itself  there  are 
provinces  which  demand  varying  degrees  of  distinctness  in 
definition  and  graduation  of  discipline;  there  are  matters  of 
doctrine,  of  discipline  proper,  of  property  and  of  judica- 
ture; there  are  legislation,  jurisdiction,  administration; 
there  are  functions  for  the  theologian,  the  casuist,  the  can- 
onist, and  the  civilian;  questions  of  doctrine  for  the  theo- 
logian, of  morals  for  the  casuist,  of  discipline  for  the  canon- 
ist, of  procedure  for  the  civil  lawyer. 

Well,  philosophical  or  not,  these  considerations  seem  to 
give  us  a  clue  to  the  method  of  our  investigation,  and  suggest 
a  division  into  two  heads :  first,  the  tracing  of  the  growth  of 
the  ecclesiastical  law,  including  both  the  material  and  the 
scientific  study ;  and  secondly,  the  history  of  its  working  in 
competition  with  and  in  general  relations  to  the  other  sys- 
tems of  law.  In  such  a  cursory  attempt  to  examine  these 
heads  as  is  possible  in  such  a  lecture  as  this,  it  is  necessary 
to  limit  the  field  of  survey  as  much  as  possible.  I  shall  there- 
fore restrict  myself  chiefly  to  the  history  of  ecclesiastical 
jurisprudence  in  England,  taking  liberty,  where  it  is  neces- 
sary, to  go  beyond,  but  not  attempting  any  general  treat- 
ment. I  have,  you  will  observe,  coupled  together  four  topics 
under  two  heads ;  I  propose  to  take  the  two  heads  sepa- 
rately, but  to  discuss  the  two  topics  that  fall  under  each 
conjointly. 

The  first  head  is  the  growth  of  ecclesiastical  law,  and  its 
two  branches  are  the  materials  and  the  study.  The  mate- 
rials arrange  themselves  thus:  the  New  Testament  contains 
not  only  all  doctrine  necessary  to  salvation,  but  all  necessary 
moral  teaching,  and  as  much  social  teaching  as  was  needed 
for  the  age  in  which  it  was  propounded,  and  for  the  society 
which  in  the  first  instance  was  embodied  under  apostolic 
government.  But  in  the  very  nature  of  things,  and  you 
must  here  recollect  that  I  am  trying  to  look  at  the  subject 


8.     STUBBS:    THE    CANON   LAW  251 

rather  as  a  philosopher  than  as  a  divine,  Christianity,  as  a 
growing  religion,  was  certain  to  require  an  expansion,  in 
expanding  circumstances,  of  the  principles  which  were  clearly 
enough  stated  in  the  Gospel,  but  the  application  of  which 
had  to  be  regulated  by  some  other  process  than  the  will  of 
the  individual.  The  moral  teaching  had  to  be  expanded 
authoritatively,  the  dogmatic  teaching  had  to  be  fenced  by 
definitions,  the  administrative  machinery  had  to  be  framed 
with  some  attempt  at  uniformity,  so  that,  whilst  the  Christian 
society  remajned  a  simple  voluntary  society  with  no  power 
of  enforcing  its  own  precepts  by  material  sanctions,  it  should 
have  a  common  jurisprudence  recognised  by  the  conscience 
of  its  members  and  by  their  general  consent.  Hence  from 
the  days  of  the  apostles  there  were  councils,  and  canons,  and 
constitutions,  and  books  of  discipline;  at  first  the  canons, 
councils,  and  books  of  discipline  covered  all  the  ground  of 
which  I  have  spoken  —  doctrine,  discipline,  and  administra- 
tion, although  some  councils  may  be  more  famous  for  their 
decisions  on  one  point  than  on  another.  Not  perhaps  to 
speak  of  the  Apostolic  Constitutions,  take  the  council  of 
Nicea  for  an  example,  and  remember  that  we  owe  to  it  not 
only  a  formulated  creed,  but  directions  about  consecration 
of  bishops  and  ordination  of  priests,  and  likewise  rules  for 
the  treatment  of  the  lapsed  and  apostates,  and  the  prohi- 
bition of  usury.  The  legislation  of  Constantine  added  a  new 
element  which  worked  itself  into  all  these  three ;  giving  a 
coercive  and  material  force  to  rules  which  had  been  hitherto 
matters  of  conscience  and  consensus ;  the  church  was  em- 
powered to  enforce  her  doctrinal  decisions,  her  rules  of  dis- 
cipline, and  her  frame  of  administration;  and  that  so  com- 
pletely that  from  this  date  the  ecclesiastical  administration 
in  Christian  countries  under  the  empire  became  so  wedded  to 
the  secular  administration  as  to  be  at  times  almost  indis- 
tinguishable from  it  except  on  close  investigation.  From 
this  date  then  our  materials  begin  to  sort  themselves:  the 
doctrinal  definitions  are  embodied  in  the  Creeds,  and  need 
not  be  pursued  further  than  the  fourth,  or,  at  the  outside, 
the  sixth  general  council:  but  the  canons  of  discipline  and 
administration  are  worked  into  great  detail  for  a  long  period 


252    //.     FROM    THE    1100'S    TO    THE    1800'S 

and  in  many  countries.  And  here  I  must  take  a  new  point: 
the  coercive  authority  given  to  the  churches  in  matters  of 
morals  becomes  henceforth  a  branch  of  jurisdiction,  but  there 
still  remain  branches  of  moral  discipline  which  depend  on 
voluntary  obedience,  in  which  a  powerful  offender,  or  a 
man  who  does  not  choose  to  confess,  may  defy  law  and  order. 
For  the  latter  were  invented  what  may  be  called  manuals  of 
casuistry,  the  Penitentials ;  for  the  jurisdiction  proper  there 
remained  the  canons  of  the  councils,  now  possessing  cogent 
authority,  and  the  laws  of  the  empire,  now  framqd  on  a  strict 
conformity  between  church  and  state. 

Here  then  we  reach  the  historical  materials  on  which  is 
based  the  later  canon  law ;  and  almost  at  the  same  time  the 
date  at  which  the  conversion  of  England  began.  In  the 
middle  of  the  sixth  century  Dionysius  Exiguus,  a  Roman 
abbot,  compiled  the  collection  of  canons  which  was  the  germ 
and  model  of  all  later  collections.  Nearly  at  the  same  time, 
both  in  the  Eastern  Church  under  John  the  Faster,  and  in 
the  extreme  West  under  the  Irish  and  other  Celtic  mission- 
aries, began  the  compilation  of  Penitentials ;  and  in  the 
same  century  the  emperor  Justinian  completed  the  great 
body  of  the  civil  law.  Thus  you  get  the  three  conjoint  sys- 
tems of  jurisprudence:  not  distinct  in  fact  from  each  other; 
overlapping  everywhere,  and  even  containing  much  common 
matter,  but  distinct  in  basis.  Take  the  Penitential  first: 
that  was  in  reality  a  list  of  sins  and  their  penances;  sins 
so  ticketed  and  valued  as  to  please  even  the  most  abstract 
philosopher ;  permutated  and  combined  to  mathematical  pre- 
cision. This  sort  of  literature,  belonging  especially  to  ages 
and  nations  brought  into  close  contact  with  heathen  abom- 
inations, was  very  important  in  the  last  converted  countries 
of  East  and  West;  Archbishop  Theodore  of  Canterbury, 
the  Venerable  Bede,  Egbert  of  York,  and  among  the  Celts 
Columbanus,  Cummian,  Vinniaus,  and  Adamnan,  founded 
the  penitential  system  here:  from  them  the  Frank  and  Ger- 
man churches  adopted  their  rules,  and  by  and  by,  when 
Anglo-Saxon  literature  was  borrowing  from  the  Continent, 
our  scholars  translated  back  with  interest  the  developed 
systems  which  their  predecessors  had  sent  abroad.  These 


8.     STUBBS:    THE    CANON   LAW  253 

rules  of  penance  continue  to  be  elaborated  in  England  to 
the  time  of  the  Conquest;  and  bear  some  analogy  to  the 
early  laws  of  the  Anglo-Saxon  kings,  which  consist  so 
largely  of  definitions  of  crimes  and  penalties.  It  is  to  be 
remembered,  however,  that  the  Penitentials  were  private 
compilations,  the  authority  of  which  depended  on  the  esti- 
mation or  dignity  of  their  authors,  and  not  on  any  legisla- 
tive sanction;  but,  notwithstanding  that,  there  is  sufficient 
harmony  amongst  them  to  show  that  they  incorporate  the 
rules  on  which  the  episcopal  jurisdiction  pure  and  simple 
generally  proceeded;  they  were  a  sort  of  customary  church 
law  for  their  own  province.  But  over  and  above  these  there 
were  the  canons,  or  authorised  church  law ;  and  of  these  also 
there  was  a  series  of  important  collections.  I  am  unable  to 
say  how  far  the  collection  of  Dionysius  Exiguus  was  re- 
ceived in  England  and  Ireland  at  first:  but  from  the  begin- 
ning of  the  Church  History  of  United  England,  a  series 
of  new  canons  began  to  be  added  to  the  early  collections: 
Theodore  himself  added  the  decisions  of  Roman  and  Byzan- 
tine councils  to  the  resolutions  of  his  own  national  synods: 
a  great  and  important  succession  of  Anglo-Saxon  councils 
issued  canons  which  were  received  with  great  respect  in  all 
the  Western  churches,  as  we  know  from  S.  Boniface's  letters 
and  the  remains  of  the  canons  themselves.  From  Ireland 
likewise  proceed  a  great  collection  of  canons  —  the  famous 
Collatio  Hibernica,  which,  beginning  with  the  edicts  of 
S.  Patrick,  went  on  to  embody  the  results  of  ecclesiastical 
legislation  in  West  and  East,  and,  by  the  time  of  Dunstan, 
whose  copy  of  it  we  possess  in  the  Bodleian,  had  added  by 
successive  accretions  all  that  was  thought  worth  preserving 
even  in  the  capitularies  of  the  Frank  kings.  The  Anglo- 
Saxon  Church  possessed  no  such  comprehensive  collection  of 
its  own;  but  .abroad  the  codification  of  church  law  pro- 
ceeded rapidly.  I  have  seen  in  the  National  Library  at 
Paris  some  invaluable  MS.  collections  earlier  than  the  date 
of  the  forged  decretals ;  and  the  forged  decretals  themselves 
were  probably  not  the  work  of  one  man  or  one  generation. 
Not  however  to  tread  again  this  well-trodden  path,  pass 
on  to  the  collectors  of  genuine  or  less  suspected  canons: 


254    //.     FROM    THE    1100'S    TO    THE    1800'S 

of  whom  the  most  important  is  Burchard  of  Worms.  He, 
at  the  beginning  of  the  eleventh  century,  got  together  and 
arranged  systematically  all  the  materials  he  could  find: 
borrowing  authoritative  determinations  from  the  peniten- 
tials,  the  canons  of  councils,  articles  of  the  civil  law  as  known 
to  him  by  the  Theodosian  code,  and  the  capitularies  of  the 
emperors.  A  century  later,  Bishop  Ivo  of  Chartres  produced 
the  Pannormia,  a  similar  collection,  improved  on  that  of 
Burchard  by  the  use  of  the  Digest  and  Code  of  Justinian. 
Ivo  was  a  contemporary  of  Henry  I  of  England,  and  his  date 
carries  us  past  the  Norman  Conquest  and  the  Hildebrandine 
period. 

We  must. revert  to  the  third  element  of  church  law,  the 
religious  laws  of  the  kings.  Of  these  the  history  in  England 
is  straightforward  enough.  The  Anglo-Saxon  sovereigns, 
acting  in  the  closest  union  with  their  bishops,  made  eccle- 
siastical laws  which  clothed  the  spiritual  enactments  with 
coercive  authority,  and  sometimes  seemed  to  ignore  the  lines 
which  separate  the  two  legislatures;  such  sacred  laws  of 
Alfred,  Canute,  and  Ethelred  only  affect  our  subject  so  far 
as  they  operated  on  the  common  law  of  the  country  in  such 
matters  as  tithes,  observance  of  holy  days,  and  the  like ;  they 
do  not  become  by  themselves  a  part  of  the  later  church  law. 
On  the  Continent  there  is  this  difference :  —  the  Theodosian 
code  had  to  a  great  extent  won  its  way  over  Western  Europe ; 
it  enters  into  the  codes  of  the  barbarians,  into  the  law  of  the 
Pays  du  droit  ecrit,  and  into  the  canon  law  of  France;  the 
capitularies  of  Charles  the  Great  and  his  successors,  even  to 
a  greater  extent  than  the  Anglo-Saxon  laws,  combine  eccle- 
siastical with  secular  dooms;  and  such  of  them  as  are  ac- 
cepted find  their  way  into  the  Church  law.  But,  over  and 
above  this  infiltration,  comes  .the  necessary  requirement  of 
developing  jurisprudence.  The  New  Testament,  the  canons 
of  the  General  Councils,  the  Penitentials,  the  Decretals, 
did  not  invent  new  systems  of  procedure.  Where  the  Roman 
courts  existed  they  became  the  model  of  the  Church  courts, 
and  where  they  did  not  the  ecclesiastical  procedure  followed 
the  lines  of  the  national  and  customary  tribunals.  Hence, 
wherever  the  Theodosian  code  spread,  it  carried  the  Roman 


8.     STUBBS:    THE    CANON   LAW  255 

procedure  as  a  part  of  church  administration;  where,  as  in 
England,  only  faint  scintillas  of  the  civil  law  were  to  be  found, 
the  Church  courts  must  have  proceeded  on  much  the  same 
rules  as  the  popular  courts.  And  this  is  a  matter  to  be  seri- 
ously noted  as  we  reach  the  critical  point  of  the  Norman 
Conquest.  It  is  true  we  know  very  little  about  ecclesiastical 
procedure  before  this  date,  and  what  we  do  know  is  not  very 
clear;  we  may  however  affirm  pretty  confidently  that  there 
was,  over  and  above  the  strictly  private  discipline  of  the 
Confessional,  a  system  of  church  judicature  with  properly 
designated  judges,  and  a  recognised  though  not  well-defined 
area  of  subject-matter  in  persons  and  things.  To  put  it  very 
briefly,  sacred  persons  and  sacred  things,  men  in  orders, 
monks  and  nuns,  sacred  places,  churches  and  churchyards, 
sacred  property,  lands,  books  and  the  furniture  of  churches, 
were  under  the  special  protection,  and,  as  protection  implied 
jurisdiction,  under  the  jurisdiction  of  the  bishops,  who  like- 
wise had  authority  in  matrimonial  and  like  causes.  There 
was  a-  territorial  episcopate,  and  the  bishops  exercised  their 
judicial  powers  with  the  help  of  archdeacons  and  deans. 
But,  it  would  appear,  these  judicial  matters  were  transacted 
in  the  ordinary  gemots  of  the  hundred  and  the  shire.  Just 
as  the  court  baron,  court  leet,  and  court  customary  of  a 
manor  are  held  together,  so  the  court  spiritual  and  the 
hundred  or  county  court  were  held  together ;  and  the  pro- 
ceedings were  probably  in  strict  analogy.  Just  as  surety- 
ship was  the  rule  in  the  hundred  court,  it  was  in  the  bishop's 
court ;  so  also  compurgation  and  ordeal,  the  law  of  witness, 
and  the  claim  of  the  mundborh  over  the  person  of  the  liti- 
gant. I  am  not  prepared  to  say  that  through  intercourse 
with  the  French  Church  some  portions  of  the  Roman  pro- 
cedure may  not  already  have  crept  in,  but,  so  far  as  I  can 
see,  I  am  inclined  to  the  belief  that,  whilst  there  was  a  cus- 
tomary canonical  law  and  a  substantially  canonical  judi- 
cature, the  character  of  the  procedure  was  customary  and 
primitive,  and  differed  in  nothing  materially  from  the  lay 
procedure.  The  bishop  declared  the  ecclesiastical  law  as  the 
ealdorman  did  the  secular,  the  assessors  determined  the  point 
on  which  evidence  or  oaths  were  to  be  taken,  and  the  suitors 


256     //•     FROM    THE    1100'S    TO    THE    1800'S 

were  technically  the  judges.  Of  course  all  this  is  stated 
subject  to  correction:  but  this  I  suppose  to  be  the  case  at 
the  Conquest,  and  more  or  less  the  case  until  the  close  of  the 
reign  of  Henry  I,  for  the  changes  introduced  by  the  Con- 
queror were  not  instantaneous  in  their  effects. 

And  we  come  now  to  the  consideration  of  the  effects  of 
the  Conquest  on  this  branch  of  our  constitutional  system. 
Here  we  have  to  remember  two  things :  first,  that  the'  Nor- 
man Conquest  coincided  in  time  with  the  Hildebrandine  re- 
vival; and  secondly,  that  the  Conqueror  carried  through 
his  most  important  measures  of  change  by  the  work  of 
Norman  ecclesiastics,  many  of  them  lawyers  rather  than 
theologians ;  of  whom  Lanf ranc,  the  representative  of  a 
family  of  Lombard  lawyers,  was  the  chief.  These  two 
points  enable  us  at  once  to  estimate  the  importance  of  the 
act  by  which  William  separated  the  work  of  the  bishops' 
courts  from  the  work  of  the  sheriffs'  courts,  and  promised 
the  assistance  of  the  royal  or  secular  justice  in  carrying 
into  effect  the  sentences  of  the  episcopal  laws.  In  the  first 
place  he  had  substituted  for  the  native  bishops,  used  to 
national  law  and  customary  procedure,  foreign  bishops 
learned  in  the  Hildebrandine  jurisprudence -and  the  Roman 
procedure ;  and  in  the  second  he  had  liberated  the  Church 
judicature  from  its  association  with  the  popular  judicature. 
But,  you  will  observe,  much  still  remained  to  be  done;  for 
not  yet  had  either  Ivo  or  Gratian  collected  the  Decretum, 
nor  had  Irnerius  and  the  Bolognese  lawyers  begun  to  lecture 
on  the  Pandects;  there  was  not  as  yet  a  recognised  canon 
law  or  a  complete  civil  law  procedure. 

One  immediate  result  more  I  will  notice,  the  breaking  up 
of  the  dioceses  into  archdeaconries;  for  up  to  this  time  the 
bishops  had  done  most  of  their  own  work.  Dunstan  had 
sat  at  the  south ,  door  of  Canterbury  Cathedral  and  had 
administered  supreme  justice;  and  one  archdeacon,  generally 
in  deacon's  orders,  had  been  a  sufficient  eye  for  the  bishop 
where  he  could  not  be  personally  present.  The  Norman 
bishops  wanted  more  than  one  eye,  and,  almost  immediately 
after  the  Conqueror's  legislative  separation  of  the  courts, 
we  find  that  the  archidiaconal  service  is  formed  on  the  plan 


8.     STUBBS:    THE    CANON   LAW  257 

of  that  of  the  sheriffs ;  the  larger  dioceses,  such  as  Lincoln 
and  London,  being  broken  up  into  many  archdeaconries; 
and  the  smaller  ones,  such  as  Norwich,  following  the  exam- 
ple. There  was  a  vast  increase  in  ecclesiastical  litigation, 
great  profits  and  fees  to  be  made  out  of  it;  a  craving  for 
canonical  jurisprudence  and  reformed  judicature  analogous 
to  the  development  of  constitutional  machinery ;  and  with 
it  the  accompanying  evils  of  the  ill-trained  judges  and  an  ill- 
understood  system  of  law.  This  continued  to  be  the  case 
throughout  the  twelfth  century,  and  very  conspicuously  so 
in  the  earlier  part  of  it.  The  archdeacons  were  worldly, 
mercenary,  and  unjust;  the  law  was  uncertain  and  unau- 
thoritative;  the  procedure  was  hurried  and  irregular.  The 
evils  were  not  confined  to  England,  although  they  were  here 
intensified  by  the  fact  of  the  novelty  of  the  system. 

On  this  condition  of  things  a  new  light  arose  in  the  mid- 
dle of  the  century;  the  resuscitation  of  the  jurisprudence 
of  Justinian  and  the  codification  of  the  canons  by  Gratian. 
The  one  supplied  the  necessary  procedure,  the  other  the 
necessary  law.  I  place  them  together,  because  their  opera- 
tion reaches  England  nearly  at  the  same  time ;  more  minutely, 
the  civil  law  revival  precedes  the  canon  law  revival  by  about 
forty  years.  I  must  say  also  that,  when  I  speak  of  the  civil 
law  as  remodelling  procedure,  I  do  not  mean  that  it  intro- 
duced any  sudden  changes,  but  that  it  supplied  principles 
and  precedents  for  the  due  development  of  the  older  Roman 
procedure,  which  had  become  as  much  a  matter  of  custom 
as  that  of  the  popular  jurisprudence  was.  The  real  founder 
of  the  medieval  canon  law  jurisprudence  in  England  was 
Theobald,  Archbishop  of  Canterbury,  who  was  consecrated 
in  1139  and  ruled  the  Church  until  1161 ;  he  is  best  known 
popularly  as  the  rival  of  Henry  of  Blois,  Bishop  of  Win- 
chester, and  as  the  patron  of  Thomas  Becket ;  but  his  real 
importance  is  irrespective  of  personal  matters.  He  saw  the 
mischief  which  the  maladministration  of  the  archdeacons  was 
doing,  and  instituted  a  nearer  official  of  greater  authority 
and  more  direct  responsibility.  John  of  Salisbury,  the  phi- 
losopher and  historian,  was,  as  secretary  to  Archbishop 
Theobald,  the  ancestor  of  the  diocesan  chancellors,  officials 


258     //.     FROM    THE    1100'S    TO    THE    1800'S 

and  vicar-generals,  who  begin  to  execute  with  more  regu- 
larity and  intelligence  the  law  of  the  Church.  Henry  of 
Blois  when  legate  had,  as  we  are  told,  greatly  encouraged 
the  practice  of  appeals;  and  an  immense  proportion  of 
John  of  Salisbury's  letters,  written  in  the  name  of  Theobald, 
are  concerned  with  questions  of  appeal,  on  the  rights  of 
advowsons,  and  other  branches  of  clerical  discipline.  But 
that  was  not  all.  In  the  year  1149  Theobald  brought  from 
Lombardy  and  settled  at  Oxford  as  a  teacher  Master  Va- 
carius,  who  had  given  himself  to  the  study  of  the  Code  and 
Digest,  and  drawn  up  handbooks  of  procedure  sufficient 
to  settle  all  the  quarrels  of  the  law  schools.  Stephen,  the 
reigning  king,  set  himself  stedfastly  against  this  new  teach- 
ing and  expelled  Vacarius ;  he  had  on  his  side  the  unintel- 
ligent dislike  of  foreign  manners,  the  prudent  conservatism 
of  the  elder  prelates,  and  the  personal  jealousies  of  his 
brother  Henry,  whose  opponent  in  political  matters  Theobald 
was.  Accordingly  the  civil  law  was  for  the  time  banished. 
In  the  year  1151  Gratian  completed  the  Decretum,  the  con- 
cordance of  the  canon  laws;  and  they  shortly  found  their 
way  to  England,  where  however  they  were  scarcely  more 
warmly  received  than  the  civil  laws  had  been,  but  were  not 
directly  banished.  It  is  curious  that  both  Prynne  and  Sel- 
den,  not  to  mention  Coke,  have  confounded  the  teaching 
of  Vacarius  with  the  attempt  to  introduce  canon  law.  It 
is  certain  that  what  Vacarius  taught  was  the  Corpus  Juris 
of  Justinian;  but  the  two  systems  are  thus  closely  joined 
together  both  in  time  and  in  essential  character.  And  from 
this  time  dates  in  England  that  extremely  close  connexion 
between  the  two  systems  which  is  recognised  in  the  '  Utri- 
usque  juris  doctor atus  '  and  in  the  fact  that  every  great 
canonist  throughout  the  middle  ages  in  England  was  also 
a  great  civilian. 

The  first  result  perhaps  of  these  novelties,  so  far  as  Eng- 
lish law  is  concerned,  was  the  improvement  in  legal  education. 
Although  Bologna  and  Pavia  could  not  be  suffered  to  come 
to  England,  England  might  go  to  Bologna;  and  a  stream 
of  young  archdeacons,  at  the  age  at  which  in  England  a 
boy  is  articled  to  an  attorney,  poured  forth  to  the  Italian 


8.     STUBBS:    THE    CANON    LAW  259 

law  schools.  Many  and  varied  were  their  experiences;  but 
invariably  they  get  into  debt  and  write  home  for  money ; 
some  of  them  fall  in  love  and  become  the  quasi-husbands 
of  Italian  ladies;  some  get  a  bad  character  for  learning 
the  Italian  art  of  poisoning;  some  are  killed  in  frays  with 
the  natives ;  some  remain  abroad  and  become  professors ; 
all  more  or  less  illustrate  the  scholastic  question  which  John 
of  Salisbury  propounds,  Is  it  possible  for  an  archdeacon 
to  be  saved?  There  are  some  few  exceptions,  but  they  seem 
to  be  generally  of  the  men  who  stuck  to  theology  and  went 
for  their  education  no  further  than  Paris.  The  scrapes  of 
the  archdeacons  however  I  have  spoken  of  before;  they  are 
a  really  amusing  feature  of  the  epistolary  correspondence 
of  the  time.  I  pass  on  to  something  more  important. 

Great  as  the  advantages  might  be  of  an  improved  code 
of  laws  and  system  of  procedure,  neither  the  canon  law  nor 
the  civil  law  was  accepted  here;  they  were  rejected  not  only 
by  the  stubborn  obscurantism  of  Stephen,  but  by  the  bright 
and  sagacious  intellect  of  Henry  II.  Now,  considering  the 
close  political  connexion  between  Theobald  and  the  Plan- 
tagenet  party,  it  is  not  at  all  impossible  that  Henry  II  may 
have  been  among  the  pupils  of  Vacarius :  certainly  he  was 
more  of  a  lawyer  than  mere  empirical  education  could  make 
him,  and,  as  certainly,  he  was  awake  to  the  difficulties  to 
which  too  ready  acceptance  of  the  reformed  jurisprudence 
would  expose  him.  How  great  a  lawyer  he  was  I  need  not 
tell  you;  how  directly  his  difficulties  were  owing  to  the  new 
doctrines  of  the  canon  lawyers  we  know  from  the  history 
of  Becket.  I  will  only  mention  two  points  that  illustrate  his 
permanent  relation  to  the  subject:  first,  his  Assize  of  Dar- 
rein  Presentment  removed  all  questions  of  advowsons~and 
presentations  from  the  ecclesiastical  courts  where  they  were 
the  source  of  constant  appeals  to  Rome;  and  secondly,  by 
the  Constitutions  of  Clarendon  he  did  his  best  to  limit  the 
powers  of  the  ecclesiastical  lawyers  in  criminal  matters  and 
in  all  points  touching  secular  interests.  Against  this  must 
be  set  the  fact  that  to  his  days  must  be  fixed  the  final  sliding 
of  testamentary  jurisdiction  into  the  hands  of  the  bishops, 
which  was  by  the  legislation  of  the  next  century  permanently 


260    //•     FROM    THE    1100'S    TO    THE    1800'S 

left  there,  in  a  way  which,  however  accordant  with  the  policy 
of  the  papacy,  was  an  exception  to  the  rule  of  the  rest  of 
Christendom.  Henjcy,  although  not  by  any  known  assize 
or  constitution,  must  have  restrained  the  ecclesiastical  judi- 
cature  from  interfering  in  secular  matters,  except  in  the 
two  points  of  matrimony,  which  was  closely  connected  with 
a  sacramental  theory,  and  of  testamentary  business.  These 
two,  however,  furnished  matter  sufficiently  remunerative  for 
a  school  of  church  lawyers ;  and  the  more  distinctly  ecclesi- 
astical jurisdiction  over  spiritual  things  and  persons  pro- 
vided much  more.  A  thoroughly  learned  class  of  civil  and 
canon  lawyers  is  required  over  and  above  the  thoroughly 
learned  class  of  common  law  and  (to  anticipate  a  little) 
chancery  lawyers  of  the  royal  courts. 

Here  then  we  begin  to  mark  signs  of  increasing  divergence. 
The  common  lawyers  of  England,  the  men  who  tread  in  the 
steps  of  Glanville,  who  are  closely  allied  with  the  baronage 
and  with  the  customary  theories  of  prerogative,  are  opposed 
to  the  introduction  of  either  branch  of  the  Roman  law. 
Glanville,  anticipating  the  decision  of  the  Statute  of  Merton 
on  the  question  of  legitimisation  of  children  by  the  subse- 
quent marriage  of  their  parents,  speaks  of  the  *  canones 
legesque  Romanorum '  with  the  same  tone  of  aversion.  The 
ecclesiastics  who  followed  the  common  law  were  as  adverse 
to  the  Roman  law  as  were  the  knights  and  barons  who 
learned  secular  jurisprudence  in  the  discharge  of  executive 
office:  and  very  rarely  do  we  find  a  great  judge  of  the 
courts  of  Westminster  taken  from  the  ranks  of  canonists 
or  civilians.  Yet  the  educational  influence  of  these  two  great 
systems  was  making  itself  felt  very  early  indeed.  Not  only 
does  Glanville,  in  the  preface  to  his  manual,  cite  from  the 
Institutes  the  language  in  which  he  addresses  his  master, 
but  large  importations  from  the  civil  law  procedure  must 
have  come  in  as  the  jurisprudence  developed;  and  Bracton, 
who  wrote  a  century  after  Glanville,  makes  direct  citations 
from  the  compilations  of  Justinian.  If  I  were  not  afraid  of 
the  lawyers,  I  should  venture  to  say  that  the  whole  theory 
of  Appeals  and  the  whole  subject  of  Equity  are  strange  to 
the  national  growth  of  the  common  law,  and,  although  widely 


8.     STUBBS:    THE    CANON   LAW  261 

differing  in  details,  far  more  akin  to  the  civil  law,  the  prac- 
tice of  which  in  ecclesiastical  causes  was  steadily  before  men's 
eyes  whilst  they  were  developing  the  new  systems.  But  I 
dare  not  venture  to  say  this  without  more  authority. 

As  we  proceed,  however,  we  are  struck  more  and  more 
with  the  prominence  of  the  scientific  element  in  legal  edu- 
cation. The  great  compilations  are  not  received  as  having 
any  authority  in  England,  but  they  are  the  sole  legal  teach- 
ing which  is  to  be  obtained  in  the  schools  where  Englishmen 
go  to  learn  law.  The  common  law  judges  may  not  be  canon- 
ists or  civilians,  but  the  statesmen,  in  many  cases  at  least, 
are ;  certainly  archbishops  Langton  and  Boniface  and  Peck- 
ham  and  Winchelsey.  And  even  of  the  common  lawyers  it 
must  be  affirmed  that  their  teaching,  such  as  they  had,  was 
not  merely  empirical,  not  the  mere  knowledge  of  customs 
and  the  few  statutes  that  were  as  yet  incorporated  in  the 
common  law  code;  but  scientific,  that  is,  learned  from  the 
writings  of  jurists  who  treated  not  merely  of  the  letter  or 
the  case,  but  of  the  spirit  and  reason  of  legislation.  Glan- 
ville's  is  indeed  but  a  book  of  procedure,  but  Bracton,  Fleta, 
and  Britton  are  jurists,  and  whilst  they  illustrate  and  ex- 
plain the  common  law,  bring  to  the  interpretation  an  intel- 
ligence and  authority  that  look  to  something  far  higher 
than  precedent.  We  see  how  long  the  old  doctrine  of  the 
authority  that  is  in  the  mouth  of  the  judge  stands  out 
against  the  new  doctrine  that  is  in  the  letter  of  the  law. 
Like  the  '  decretum,'  like  the  '  responsa  prudentum '  of  the 
Pandects,  the  work  of  Bracton  is  a  scientific  rather  than  an 
authoritative  text-book.  But  I  am  anticipating  what  I 
ought  to  put  in  proper  order  somewhat  later. 

Whilst  the  study  of  these  foreign  systems  was  becoming 
increasingly  important  and  increasingly  common,  the  pop- 
ular dislike  of  foreign  law  was  not  in  the  least  diminished. 
I  must  here  couple  the  two  Roman  systems  together,  for  to 
all  purposes  of  domestic  litigation  they  were  inseparable: 
the  *  canones  legesque  Romanorum '  were  classed  together 
and  worked  together,  mainly  because  it  was  only  on  ecclesi- 
astical questions  that  the  civil  law  touched  Englishmen  at 
all,  but  also  because  without  the  machinery  of  the  civil  law 


262    //.     FROM    THE    1100'S    TO    THE    1800'S 

the  canon  law  could  not  be  worked;  if  you  take  any  well- 
drawn  case  of  litigation  in  the  middle  ages,  such  as  that 
of  the  monks  of  Canterbury  against  the  archbishops,  you 
will  find  that  its  citations  from  the  Code  and  Digest  are 
at  least  as  numerous  as  from  the  Decretum.  Moreover  the 
accretions  of  the  Decretum,  the  Extravagants  as  they  were 
called,  that  is  the  authoritative  sentences  of  the  Popes  which 
were  not  yet  codified,  were  many  of  them  conveyed  in  an- 
swers to  English  bishops,  or  brought  at  once  to  England 
by  the  clergy  with  the  same  avidity  that  lawyers  now  read 
the  terminal  reports  in  the  Law  Journal.  The  famous  deci- 
sion which  Glanville  quotes  about  legitimation  is  embodied 
in  what  then  was  an  Extravagant  of  Alexander  III,  delivered 
to  the  bishop  of  Exeter  in  1172,  founded  no  doubt  on  a 
Novel  of  Justinian  but  not  till  now  distinctly  made  a  part 
of  church  law.  And  this  point  further  illustrates  what  I  was 
saying:  for  it  is  the  point  on  which  the  great  dictum  of 
the  council  of  Merton  turns  in  1236.  The  English  hatred 
of  the  foreigners  was  in  that  year  fanned  to  white  heat  by 
the  importation  of  the  king's  half-brothers  and  the  new 
queen's  uncles:  it  was  an  unlucky  moment  for  Grosseteste 
and  the  bishops  to  press  that  the  English  law  of  bastardy 
should  be  altered  to  suit  the  canon  and  civil  law  of  Rome. 
The  murmurs  were  already  rising  that  William  of  Valence 
was  going  to  change  the  constitution.  Notwithstanding  the 
influence  of  Grosseteste,  the  king  and  the  barons  declared 
*  Nolumus  leges  Angliae  mutari.'  That  is  a  well-known 
story;  but  it  is  perhaps  not  equally  well  known  that  the 
king  had  just  a  year  before  issued  an  order  which  stands 
in  close  parallelism  with  the  banishment  of  Vacarius.  By 
a  letter  to  the  Lord  Mayor  of  London,  dated  Dec.  11,  1234, 
he  had  directed  that  no  one  should  be  allowed  to  hold  law 
schools  in  the  city  of  London  or  teach  the  LAWS.  What 
laws  were  these?  Coke  thought  that  the  king  referred  to 
Magna  Carta  and  the  Carta  de  Forestis;  but  Selden,  and 
Prynne  after  him,  pointed  out  that  this  was  inconceivable; 
and  that  doubtless  the  LAWS  were  the  canon  laws.  I  think 
that  under  the  term  Leges  both  civil  and  canon  law  were 
intended,  but  certainly  at  the  moment  the  danger  from  the 


8.     STUBBS:    THE    CANON   LAW  263 

canon  law  was  greater.  In  the  year  1230  Gregory  IX  had 
approved  of  the  five  books  of  Decretals  codified  by  Raymund 
of  Pennafort  from  the  Extravagants  of  the  recent  Popes 
and  added  to  the  Decretum  of  Gratian.  In  1235  Matthew 
Paris  tells  us  the  Pope  was  urging  the  adoption  of  them 
throughout  Christendom.  But  they  were  not  received  in 
England,  although  they  continued  to  be  the  code  by  which 
English  causes  were  decided  at  Rome,  and  began  to  be  an 
integral  part  of  the  education  of  English  canonists.  And 
here  again  we  have  to  distinguish  between  the  scientific  or 
implicit  and  the  explicit  authority  of  these  books.  Great 
as  the  influence  of  Justinian's  code  has  been,  there  are  very 
few  countries  in  Europe  where  it  has  been  received  as  more 
than  a  treasury  of  jurisprudence;  the  '  Siete  partidas  '  of 
Alfonso  the  Wise  was  a  book  of  jurisprudence,  not  a  code 
of  law;  the  independence  of  the  Gallican  Church  turns, 
as  a  historical  question,  on  the  non-reception  of  Roman 
decrees,  the  acceptance  of  the  council  of  Basel,  and  the  non- 
reception  of  portions,  of  the  Tridentine  canons,  the  incidental 
working  of  which  must,  notwithstanding,  have  been  irre- 
sistible and  undeniable.  So  in  England  neither  the  civil  law 
nor  the  canon  law  was  ever  received  as  authoritative,  except 
educationally,  and  as  furnishing  scientific  confirmation  for 
empiric  argument;  or,  in  other  words,  where  expressly  or 
accidentally  it  agrees  with  the  law  of  the  land.  Nay,  the 
scientific  treatment  itself  serves  to  confuse  men's  minds  as 
to  the  real  value  of  the  text ;  and  in  both  laws  the  opinions 
of  the  glossers  are  often  cited  as  of  equal  authority  with 
the  letter  of  the  law  or  canon. 

But  this  same  date  123j6 -brings  me  to  another  point;  the 
beginning  of  the  Codex  receptus  of  Canon  Law  in  England; 
in  spite  of  the  Council  of  Merton  and  the  closing  of  the  law 
schools  of  London.  Since  the  Conquest  most  of  the  arch- 
bishops had  held  provincial  synods  and  issued  provincial 
canons ;  but  many  of  these  were  acts  of  a  temporary  char- 
acter only,  and,  even  when  they  received  support  and  con- 
firmation from  the  kings,  seldom  amounted  to  more  than 
the  enforcement  of  discipline  which  had  previously  been 
authorised  by  papal  or  conciliar  decrees.  These  canons  are 


264    II.     FROM    THE    1100'S    TO    THE    1800'S 

extant  in  the  pages  of  the  annalist,  but  remain  rather 
among  the  Responsa  Prudentum  than  as  materials  for  a 
code.  Just,  however,  as  the  statute  law  of  England  begins 
with  the  reign  of  Henry  III,  so  does  the  codification  of  the 
national  canon  law.  Archbishop  Langton's  Constitutions 
may  be  set  first,  but  next  in  order,  and  even  of  greater 
authority,  come  the  Constitutions  of  the  legate  Otho,  which 
were  passed  in  a  national  council  of  1237.  After  these  come 
Constitutions  of  the  successive  archbishops,  especially  Boni- 
face of  Savoy  and  Peckham,  which  were  drawn  up  in  a  very 
aggressive  spirit ;  Boniface  taking  advantage  of  Henry  Ill's 
weakness  to  urge  every  claim  that  the  English  law  had  not 
yet  cut  down,  and  Peckham  going  beyond  him  in  asserting 
the  right  of  the  Church  against  even  the  statutable  enact- 
ments of  the  state.  Between  Boniface  and  Peckham  in  the 
year  1268  come  the  Constitutions  of  Othobon,  which  were 
confirmed  by  Peckham  at  Lambeth  in  1281,  and  which,  with 
those  of  Otho,  were  the  first  codified  and  glossed  portions 
of  the  national  church  law.  In  the  reign  of  Edward  III, 
John  of  Ayton,  canon  of  Lincoln,  an  Oxford  jurist  it  is 
said,  collected  the  canons  adopted  since  Langton's  time  and 
largely  annotated  the  Constitutions  of  Otho  and  Othobon. 
Contemporaneously  with  this  accumulation  of  national  ma- 
terials, the  Corpus  Juris  of  the  Church  of  Rome  was  increas- 
ing; Boniface  VIII  added  the  sixth  book  to  the  five  of 
Gregory  IX,  and  John  XXII  added  the  Clementines  in 
1318;  and  his  own  decisions,  with  those  of  the  succeeding 
popes,  were  from  time  to  time  added  as  Extravagants  un- 
systematised.  The  seventh  book  of  the  Decretals  was  drawn 
up  under  Sixtus  V  as  late  as  1588;  so  that  practically  it 
lies  outside  our  comparative  view.  Of  course  very  much 
of  the  spirit  of  both  the  sixth  book  and  the  Clementines 
found  its  way  into  England,  but  the  statute  law  was  in- 
creasing in  vigour,  the  kings  were  increasing  in  vigilance, 
and  after  the  pontificate  of  Clement  V  the  hold  of  the  papacy 
on  the  nation  was  relaxing.  Occasionally  we  find  an  arch- 
bishop like  Stratford  using  the  papal  authority  and  assert- 
ing high  ecclesiastical  claims  against  the  king,  but  the  age 
of  the  Statutes  of  Prsmunire  and  Provisors  was  come,  and 


8.     STUBBS:    THE    CANON   LAW  265 

no  wholesale  importation  of  foreign  law  was  possible.  Not 
to  multiply  details,  I  will  summarily  state  that  in  the  reign 
of  Henry  V,  William  Lyndwood,  the  Dean  of  the  Arches, 
collected,  arranged,  and  annotated  the  accepted  Constitu- 
tions of  the  Church  of  England  in  his  Provinciale,  which,, 
with  the  collections  of  John  of  Ayton  generally  found  in 
the  same  volume,  became  the  authoritative  canon  law  of  the 
realm.  It  of  course  was  proper  in  the  first  instance  to  the 
province  of  Canterbury,  but  in  1462  the  Convocation  of 
York  accepted  the  Constitutions  of  the  southern  province 
as  authoritative  wherever  they  did  not  differ  f rom»  those 
of  York,  and  from  the  earlier  date  the  compilation  was 
received  as  the  treasury  of  law  and  practice.  Nor  were 
any  very  material  additions  made  to  it  before  the  Reforma- 
tion; for  although  the  Church  of  England  was  deeply  in- 
volved in  the  transactions  of  the  Council  of  Basel,  and  might, 
if  the  matter  had  been  broached  as  distinctly  as  it  was  in 
France,  have  formally  "accepted  its  canons,  no  such  incor- 
poration of  those  canons  ever  took  place  here  as  was  accom- 
plished in  the  Pragmatic  Sanction  of  Bourges  in  1438. 

Still,  authoritative  as  Lyndwood's  code  undoubtedly  was, 
it  was  rather  as  the  work  of  an  expert  than  as  a  body  of 
statutes  that  it  had  its  chief  force.  The  study  of  the  canon 
law  was  a  scientific  and  professional,  not  merely  mechanical 
study;  and  just  as  much  was  the  study  of  the  civil  law  also. 
I  think  that  I  am  right  in  repeating  that  it  was  mainly  as 
a  branch  of  church  law  that  the  civil  law  was  studied  at  all; 
but  I  do  not  mean  that  it  was  so  exclusively.  In  the  infancy 
of  international  law  and  the  administration  of  both  admiralty 
and  martial  law,  the  English  jurists  had  to  go  beyond  their 
insular  practice,  and  to  no  other  source  could  they  apply 
themselves ;  hence  the  association  which  to  the  present  day 
has  subsisted  between  the  curiously  unconnected  departments 
of  maritime  and  matrimonial  jurisdiction.  It  is  really  ow- 
ing to  the  distinction  between  scientifically  and  empirically 
trained  lawyers.  Of  the  indirect  influence  of  scientific  juris- 
prudence on  the  common  law  and  chancery  I  have  spoken 
already. 

England  has  then  for  at  least  two  centuries  before  the 


266    //.     FROM    THE   1100'S   TO    THE    1800'S 

Reformation  a  body  of  law  and  a  body  of  judges,  for  eccle- 
siastical and  allied  questions,  quite  apart  from  the  law  and 
judicial  staff  of  the  secular  courts;  and,  with  the  growth  of 
the  Universities,  she  begins  to  have  educational  machinery 
^for  training  her  lawyers.  In  this  department  of  work,  how- 
ever, the  scientific  study  has  a  long  start  and  advantage  over 
the  empirical.  The  common  law  has  to  be  learned  by  prac- 
tising in  the  courts,  or  by  attending  on  their  sessions.  The 
apprentices  and  Serjeants  of  the  Inns  of  Court  learn  their 
work  in  London;  their  study  is  in  the  year  books  and  the 
statute  book,  a  valuable  and  even  curiously  interesting  ac- 
cumulation of  material,  but  thoroughly  insular,  or  less  than 
that,  simply  English.  The  canonists  and  civilians  have  also 
their  house  in  London,  the  '  Hospitium  dominorum  advoca- 
torum  de  arcubus,'  but  they  are  scarcely  less  at  home  at 
Rome  and  Avignon.  The  canonist  and  civilian  learn  the 
legal  language  of  entire  Christendom ;  the  London  lawyer 
sticks  to  his  Norman-French.  The  Norman-French  of  West- 
minster is  unintelligible  beyond  the  Channel  and  beyond  the 
border.  Scotland,  the  sister  kingdom,  is  toiling  without  a 
common  law  system  at  all  until,  in  the  sixteenth  century, 
James  V  introduces  the  law  of  Justinian  as  her  treasury  of 
common  law,  and  thus  gains  University  training  and  for- 
eign experience  for  her  lawyers :  but  England  has  an  ancient 
system  and  is  content  with  her  own  superiority ;  her  common 
law  is  of  native  growth,  strengthening  with  the  strength  of 
her  people;  she  sees  the  nations  that  have  accepted  the  civil 
law  sinking  under  absolutism ;  as  distinctly  as  ever  *  non 
vult  leges  Angliae  mutari.'  But  she  has  ceased  to  banish  the 
skilled  jurist.  Oxford  and  Cambridge  have  their  schools  of 
both  the  faculties.  The  civil  law  at  Oxford  had  its  schools 
from  the  fourteenth  century  in  Cat  Street,  on  the  north  of 
S.  Mary's,  in  Schidyard  Street,  and  in  the  great  civil  law 
school  in  S.  Edward's  parish  where  Archbishop  Warham 
learned  law.  The  canon  law  school  was  in  the  neighbour- 
hood of  S.  Edward's  church  also,  and  was  rebuilt  in  1489 
by  subscription  of  the  canonists.  Wood  enumerates  no  less 
than  seven  distinct  sets  of  Scholae  Legum,  the  majority  being 
for  civil  law.  In  the  colleges  legal  study  has  its  proper 


8.     STUBBS:    THE    CANON   LAW  267 

endowments.  At  Merton  the  study  of  the  canon  law  is  by 
the  founder's  statutes  permitted  to  four  or  five  of  his  schol- 
ars, that  of  the  civil  law  is  allowed  to  the  canonists  as  sub- 
sidiary to  their  proper  study,  pro  utilitate  ecclesiastici 
regiminis.  At  Oriel  five  or  six  fellows,  with  consent  of  the 
seniors,  might  read  the  canon  law,  and  by  dispensation  of 
the  provost,  the  civil  law  also.  At  Exeter,  one  of  Stapledon's 
fellows  was  to  study  Scripture  or  the  Canon  Law.  We 
learn  from  Mr.  Mullinger's  invaluable  book  on  Cambridge, 
that  at  Gonville  Hall,  founded  about  seventy  years  after 
Merton,  each  fellow  was  allowed  to  study  canon  law  for  two 
years.  It  might  be  possible  to  trace  in  the  successive  foun- 
dations vestiges  of  the  old  subsisting  and  often  revived  jeal- 
ousy of  the  studies ;  for  Merton  was  founded  at  a  time  when, 
as  Roger  Bacon  tells  us,  the  civil  law  was  looked  on  with 
jealousy  as  a  mere  professional  or  money-making  study, 
whilst  before  the  foundation  of  Gonville  Hall  the  conflict 
between  John  XXII  and  Lewis  of  Bavaria  had  made  the 
political  tendencies  of  these  studies  more  important  and 
obvious.  At  Trinity  Hall,  which  was  nearly  of  the  same 
date  as  Gonville,  ten  civilians  and  seven  canonists  were  seven- 
teen out  of  the  twenty  statutory  fellows.  At  New  College, 
out  of  seventy  there  were  to  be  ten  civilians  and  ten  canonists, 
but  these  were  reduced  by  Waynflete  to  two  civilians  and 
four  canonists.  At  All  Souls,  sixteen  out  of  forty  were  to 
be  lawyers;  at  King's  College,  Cambridge,  out  of  seventy, 
two  civilians  and  four  canonists ;  while  at  Catharine  Hall 
both  the  canon  and  civil  law  were  excluded.  These  variations 
depend  no  doubt  on  the  special  intentions  of  the  founders 
to  promote  scientific  study,  or  to  insure  the  worldly  advance- 
ment of  their  pupils,  and,  to  some  extent,  on  the  varying 
relations  between  theology  and  law  of  which  I  must  speak 
in  the  next  lecture.  It  is  however  clear,  at  the  lowest  esti- 
mate, that  abundant  encouragement  and  opportunities  for 
the  study  could  be  found  in  both  the  seats  of  learning. 
Closely  allied  as  the  canon  and  civil  laws  were,  they  com- 
posed two  faculties;  with  regular  schemes  of  lectures,  fees, 
and  exercises;  the  doctor  of  the  civil  law  had  to  prove  his 
knowledge  of  the  Digest  and  the  Institutes;  the  doctor  of 


268    //.     FROM    THE    1100'S    TO    THE    1800'S 

the  canon  law  must  have  worked  three  years  at  the  Digest 
and  three  at  the  Decretals,  and  studied  theology  also  for 
two  years.  It  is,  you  observe,  not  the  national  church  law, 
but  the  universal  or  scientific  material,  on  which  he  is  em- 
ployed. In  a  great  number  of  cases  the  degrees  were  taken 
at  the  same  time ;  but  as  the  era  of  the  Reformation  ap- 
proaches, the  canonists  become  more  numerous  than  the  civil- 
ians at  Cambridge,  and  probably  at  Oxford  also.  But  these 
points  belong  to  a  view  of  the  subject  on  which  I  cannot 
pretend  to  enter  now ;  and  indeed  it  is  in  the  conflict  of  laws 
rather  than  the  conflict  of  studies  that  the  present  interest 
of  the  subject  lies.  In  the  next  lecture  I  shall  have  to  recur 
for  some  points  to  the  ground  which  I  have  attempted  to 
cover  in  this,  for  the  struggles  and  jealousies  of  the  rival 
and  allied  systems  of  jurisprudence  do  not  date  from  the 
Reformation  only.  Here,  however,  I  stop  now,  having  in 
a  cursory  way  traced  the  history  of  the  materials  of  the 
canonical  jurisprudence  so  far  down.  We  shall  have  to 
begin  by  looking  at  the  later  history  from  the  theological 
as  well  as  from  the  legal  side,  and  to  follow  it  through  the 
Reformation  period,  steering  clear,  as  much  as  possible,  of 
questions  of  modern  controversy. 


II 

IN  the  first  of  these  two  public  lectures  I  attempted  to  give 
a  sketch  of  the  growth  of  the  Canon  Law ;  its  origin 
and  materials,  its  introduction  into  England  and  the  limits 
of  authority  which  it  attained  here,  its  relation  to  the  civil 
law  of  Rome,  and  the  distinction  between  the  scientific  study 
of  the  Decretals  in  the  Universities  and  the  professional  use 
of  the  Provinciale  in  the  Ecclesiastical  Courts.  The  second 
branch  of  the  subject,  as  I  proposed  to  treat  it  in  opening 
the  lecture,  is  the  history  of  its  working  in  competition  with 
and  in  general  relations  to  other  systems  of  law:  a  branch 
of  the  discussion  which  compels  us  at  once  to  go  back  to 
the  very  root  of  the  subject.  Canon  law  as  a  code,  and  the 
civil  law  of  Rome  as  a  treasury  of  procedure,  working  to- 


8.     STUBBS:    THE    CANON   LAW  269 

gether  in  the  hands  of  -ecclesiastical  lawyers,  may  be  for 
the  moment  looked  at  together;  .and  the  first  aspect  which 
our  subject  then  takes  is  the  attitude  of  the  system  towards 
theology  on  the  one  side  and  to  the  national,  or,  as  lawyers 
would  perhaps  call  it,  municipal  law  on  the  other.  From  the 
Conquest  to  the  Reformation  canon  law,  proceeding  by  civil- 
ian method  and  being  able  to  call  on  the  municipal  executive 
to  put  its  sentences  in  force,  is  a  strong  link  between  theology 
and  national  discipline;  but  a  link  with  so  much  intricate 
workmanship  employed  upon  it  as  to  be  offensive  in  many 
ways  both  to  theology  and  to  the  common  law.  The  theolo- 
gian saw  the  great  commandments  of  God,  and  the  statutes 
of  the  Church,  and  the  voice  of  conscience,  lowered  by  being 
made  dependent  for  their  cogency  on  an  elaborate  system 
of  human  invention  which  fettered  freedom  of  action,  and 
in  some  respects  freedom  of  thought  also;  which  reduced 
moral  obligations  to  a  system  of  penances,  pecuniary  com- 
mutations, monitions,  and  excommunications,  and  which  made 
use  of  the  sacraments  of  the  Church  as  the  mere  means  and 
appliances  of  a  coercion  to  external  good  behaviour,  which 
ought  to  be  a  free-will  offering  and  the  instinctive  product 
of  a  sincere  heart.  Do  not  think  that  I  am  exaggerating 
the  attitude  of  repulsion  in  which  the  pure  theologian  and 
the  pure  moralist  stood  to  the  ecclesiastical  lawyer  who  was 
making  money  out  of  the  practice  of  the  Courts  Christian. 
You  remember  how  John  of  Salisbury  had  doubted  whether 
an  archdeacon  could  be  saved:  Roger  Bacon  declares  that 
the  study  of  the  civil  law,  attracting  the  clever  men  among 
the  clergy,  threw  the  study  of  theology  into  a  second  place, 
and  secularised  the  clerical  character,  making  the  priest  as 
much  a  layman  as  the  common  lawyer;  while  Richard  of 
Bury,  the  author  of  the  Philobiblion,  and  Holcot  the  great 
scholastic,  declared,  the  one  that  the  civilian,  although  he 
gained  the  friendship  of  the  world,  was  an  enemy  of  God; 
the  other,  that  under  existing  relations  the  handmaid  Hagar, 
despising  the  true  wife,  was  in  apt  analogy  to  the  contempt 
under  which  neglected  theology  sank  in  the  estimation  of 
the  world  as  compared  with  the  law.  It  is  true  that  these 
remarks  have  a  primary  reference  to  the  civil  law,  but,  as 


270    II.    FROM   THE    1100'S    TO    THE    1800'S 

I  showed,  the  civil  law  was  learned  chiefly  as  the  executive 
of  the  canon  law,  and  it  was  by  its  relations  to  the  canon  law 
that  it  became  practical  and  remunerative.  I  need  not  go 
into  much  detail  about  this,  but,  if  I  am  speaking  to  any 
who  attended  my  lectures  on  Ockham  and  Marsilius,  they 
will  remember  how  not  only  those  great  writers,  but  a  crowd 
of  minor  ones,  attack  the  canon  law  and  its  professors  as 
the  great  enemies,  not  only  of  civil  government  but  of  vital 
religion :  an  exaggeration  no  doubt,  but  founded  on  a  true 
principle.  *  Who,'  says  John  of  Salisbury,  himself  a  canon- 
ist, '  ever  rises  pricked  at  heart  from  the  reading  of  the  laws, 
or  even  of  the  canons  ?  ' 1  The  practice  of  these  studies 
stood  to  theology,  stood  to  religion  itself,  in  the  relation  in 
which  the  casuistry  of  the  confessional  stood  to  true  moral 
teaching. 

When  however  we  turn,  as  we  must  do,  to  consider  the 
attitude  of  the  national  law  and  the  national  lawyers,  we  see 
more  distinctly  how  incompatible  were  the  systems  which, 
for  four  hundred  years,  from  the  Conquest  to  the  Reforma- 
tion, stood  side  by  side,  with  rival  bodies  of  administrators 
and  rival  or  conflicting  processes.  Look  first  at  the  area 
of  matters  with  which  the  canon  law  assumed  to  deal:  it 
claimed  jurisdiction  over  everything  that  had  to  do  with 
the  souls  of  men,  and  I  think  there  is  scarcely  a  region  of 
social  obligation  into  which,  so  defined,  it  would  not  claim 
to  enter.  It  claimed  authority  over  the  clergy,  in  matters 
civil  and  criminal,  in  doctrine  and  practice,  in  morals  and 
in  manners,  education  and  dress,  in  church  and  out.  It 
claimed  authority  over  all  suits  in  which  clergymen  were 
parties,  or  in  which  ecclesiastical  property  was  involved; 
I  say,  mark  you,  claimed,  rather  than  exercised,  for  some 
of  these  are  the  points  in  which  the  struggle  with  the  na- 
tional law  arises.  It  claimed  authority  over  the  belief  and 
morals  of  the  laity,  in  the  most  comprehensive  way.  The 
whole  of  the  matrimonial  jurisdiction,  the  whole  of  the  tes- 
tamentary jurisdiction  was,  we  know,  specially  regarded 
as  a  branch  of  canon  law;  but  by  its  jurisdiction  for  cor- 
rection of  life,  *  pro  salute  animae,'  it  entered  into  every 
1  Job.  Salisb.  i.  196,  epist.  138. 


8.     STUBBS:    THE    CANON   LAW  271 

man's  house;  attempted  to  regulate  his  servants,  to  secure 
his  attendance  at  church,  to  make  him  pay  his  debts,  to  make 
his  observe  his  oaths,  to  make  him  by  spiritual  censures, 
which  by  the  alliance  with  the  State  had  coercive  force,  by 
the  dread  of  a  writ  of  capias  excommunicatum,  to  keep  all 
the  weightier  matters  of  the  law,  not  only  judgment,  mercy, 
and  truth,  but  faith,  hope,  and  charity  also.  Now  the  com- 
mon law  of  the  land  was  quite  competent  to  deal  first  with 
ecclesiastical  property,  temporalities,  advowsons,  and  the 
right  to  tithes ;  the  canon  law  dealt  with  the  qualifications 
of  presentees  and  the  exaction  of  tithes :  the  common  law 
was  competent  to  deal  with  matters  of  debt  or  theft ;  the 
canon  law  claimed  to  deal  with  matters  of  credit  or  dishon- 
esty in  legal  and  moral  as  in  spiritual  obligations :  the  com- 
mon law  dealt  with  dower,  the  canon  law  with  matrimony ; 
the  common  law  with  succession  to  property,  the  canon  law 
with  legitimacy.  So  over  great  regions  of  property  law, 
and  over  the  whole  domain  of  moral  delinquency,  the  medi- 
eval world  had  two  sets  of  courts  at  which  they  might  sue, 
and  two  sets  of  lawyers  to  keep  alive  with  fees  and  retainers. 
The  canonists  affirm  that  a  suit  may  be  brought  in  the  eccle- 
siastical court  for  every  matter  which  is  not  cognisable  in 
the  courts  of  secular  law,  and  for  a  great  many  matters 
which  are  so  cognisable.  There  is  surely  an  ample  claim. 
I  do  not  want  to  go  into  detail,  but  I  will  just  point  out  one 
particular ;  the  commissary  of  the  Bishop  of  London  enter- 
tained suits  exactly  analogous  to  those  of  the  trades  unions 
of  the  present  day,  turning  on  the  question  how  far  it  is  a 
breach  of  oath  for  the  sworn  member  of  a  guild  to  impart 
the  art  and  mysteries  of  his  guild  to  outsiders. 

Here  then  you  see  the  elements  of  a  pretty  conflict;  be- 
tween the  jurists  as  a  matter  of  scientific  or  empiric  lore, 
between  the  practising  lawyers  a  conflict  for  practice  and 
f  or  ^  profits;  and  you  can  see  how  degrading  the  practical 
part  of  the  profession  was  to  the  theological  student,  or 
to  the  parish  priest.  Over  and  above  this,  there  was  the 
natural  jealousy  of  the  crown  and  the  parliament.  If  the 
canon  law  had  restricted  itself  to  really  spiritual  questions, 
matters  of  belief  or  of  morals  for  which  the  national  code 


272     //.     FROM    THE    1100'S    TO    THE    1800'S 

had  no  provision,  it  is  not  likely  that  the  kings  would  have 
been  jealous  of  papal  or  archiepiscopal  enactments,  or  would 
have  stood  on  their  rights  when  the  exact  line  was  occasion- 
ally overstepped.  But  the  extravagance  of  ecclesiastical 
claims  provoked  them  to  opposition  and  justified  it.  When 
the  archbishops  of  Henry  Ill's  reign  claimed  exclusive  juris- 
diction in  suits  of  advowsons,  the  right  to  exact  personal 
tithes,  and  to  try  all  questions  of  credit  granted  '  fide  inter- 
posita,'  even  so  gentle  a  worm  as  the  king  turned  again ; 
and  we  find  among  his  letters,  and  still  more  among  those 
of  his  son,  constant  cautions  to  the  primates  and  their  con- 
vocations not  to  attempt  anything  to  the  prejudice  of  the 
crown  and  customs  of  the  land,  as  well  as  innumerable  pro- 
hibitions to  ecclesiastical  judges  against  their  trying  other 
civil  suits  than  those  which  touch  testamentary  or  matri- 
monial matters.  Edward  II  had  to  prohibit  the  employment 
of  imperial  notaries.  In  the  spiritual  matters  proper,  the 
kings  seldom  interfered;  only  where  a  political  motive  was 
suspected,  or  where  a  servant  of  the  crown  was  attacked, 
or  where  the  spiritual  judge  had  clearly  gone  beyond  his 
discretion.  The  Church  history  of  the  thirteenth  and  four- 
teenth centuries  is  full  of  cautions  and  prohibitions,  and  of 
struggles  between  the  officers  who  had  thus  to  interfere  with 
one  another ;  and  the  definitions  of  the  '  Articuli  Cleri ' 
under  Edward  II  which  prescribed  the  points  on  which  pro- 
hibitions were  to  be  granted,  and  the  Statute  of  Prsemunire 
under  Edward  III,  which  forbade  the  multiplication  of  ap- 
peals to  Rome,  did  little  to  ameliorate  relations.  When 
however  heresy  became  a  matter  of  litigation,  the  two  sys- 
tems deliberately  worked  together ;  and,  although  there  were 
many  hitches,  during  the  whole  of  the  Lancastrian  period 
there  was  more  definite  co-operation  and  less  conflict.  The 
common  law  was  really  becoming  more  a  matter  of  scientific 
treatment,  and  the  greatest  judges  were  men  who  had  had 
scientific  education  on  both  sides.  Sometimes  there  was,  as 
was  natural,  a  little  inconsistency  and  awkwardness;  the 
bowsprit  got  mixed  up  with  the  rudder;  as  when  Morton, 
at  once  archbishop  and  chancellor,  allowed  his  judgment  on 
a  fraudulent  executor  to  be  modified  by  the  reflexion  that 


8.     STUBBS:    THE    CANON   LAW  273 

he  would  be  '  damnee  in  hell.'     But  this  may  have  been  ex- 
ceptional. 

It  must  not  however  be  supposed  that  the  fault  in  this 
rivalry  was  altogether  to  be  ascribed  to  the  canonists.  The 
English-trained  lawyer  was  as  infallible  in  that  age  as  in 
this ;  and  when  we  find  him,  and  his  brethren  in  the  parlia- 
ment, constantly  hampering  the  legitimate  work  of  the 
church,  we  see  that  there  were  two  sides  to  the  question; 
when  in  the  fourteenth  century  the  Commons  petition  that 
the  clergy  may  not  make  in  their  convocation  canons  to 
bind  the  laity,  it  is  rather  a  relief  to  find  that  the  canons 
in  question  relate  to  tithe  of  underwood:  but  when  in  1446 
we  find  the  clergy  remonstrating  that  the  professional  law- 
yers *  pretended  privilege,  by  what  right,'  they  say,  *  we 
know  not,  to  interpret  acts  of  parliament  and  explain  the 
mind  of  the  legislature,  and  by  thus  practising  upon  the 
statutes  sometimes  ground  their  opinion  on  mysterious  and 
unintelligible  reasons,  and  so  wrest  the  laws  contrary  to  the 
meaning  and  intention  of  parliament ; '  or  petitioning  that 
the  judges  who  showed  such  strong  bias  should  no  longer 
issue  prohibitions,  but,  when  questions  arose  concerning  the 
limits  and  jurisdiction  of  the  rival  courts,  indifferent  persons 
should  be  pitched  upon  to  judge  them;  or  the  lawyers,  on 
the  other  hand,  striking  at  the  root  of  all  ecclesiastical  juris- 
diction as  if  it  were  a  transgression  of  the  Statute  of  Prse- 
munire,  —  well,  when  we  look  at  these  things,  we  shall  see 
that  there  were  questions  unsettled  even  before  the  Council 
of  Trent,  and  hear  opinions  and  complaints  that  sound  like 
echoes  beforehand  of  voices  with  which  in  these  days  our 
ears  are  too  familiar. 

I  must,  however,  now  proceed  to  the  Reformation,  and 
endeavour  to  determine,  as  strongly  and  as  clearly  as  I  can, 
the  bearing  of  that  most  critical  era  on  our  subject.  Henry 
VIII  had,  as  early  as  1515,  seen  a  struggle  between  the  sec- 
ular and  ecclesiastical  jurisdictions  in  Standish's  .case,  in  the 
course  of  which  he  is  said  to  have  expressed  himself  as 
determined  to  endure  no  division  of  sovereignty  in  his  own 
realm.  Whether  that  was  really  said  or  merely  put  into  his 
mouth  afterwards,  I  cannot  say;  but  certainly  no  scheme 


274    //.     FROM    THE   1100'S    TO    THE   1800'S 

of  change  in  the  relation  between  Church  and  State  was  set 
on  foot  for  nearly  seventeen  years.  Then  the  business  of 
the  divorce  at  Rome,  and  the  discontent  of  the  king  with 
the  half-hearted  support  of  the  clergy  at  home,  completed 
his  disgust,  and  he  set  out  in  the  course  of  radical  change. 
Having  in  1531  compelled  the  clergy  by  the  threat  of  prse- 
munire  to  recognise  him  as  supreme  head  *  quantum  per 
Christi  legem  licet,"  he  induced  the  Commons  in  1532  to 
present  a  petition  or  remonstrance  against  the  whole  theory 
and  practice  of  the  canon  law.  They  attacked  the  power 
of  the  clergy  to  make  canons  in  convocation,  they  protested 
against  the  exaction  of  fees  and  mortuaries,  and  deliberately 
impugned  the  honesty  and  purity  of  the  episcopal  courts  in 
all  their  branches  and  with  reference  both  to  jurisdiction  and 
to  procedure.  This  petition  had  two  results ;  the  parliament 
passed  bills  to  limit  the  benefit  of  clergy  and  forbid  feoff- 
ments  to  the  use  of  churches.  An  earlier  session  in  1529  had 
attempted  to  deal  with  probate  and  mortuaries ;  this,  by  the 
Statute  of  Citations,  cut  down  the  power  of  the  Archbishop 
of  Canterbury  to  entertain  suits  from  other  dioceses  except 
by  appeal  or  on  request,  and  so  struck  at  the  root  of  the 
universal  jurisdiction  enjoyed  by  the  Court  of  Arches  and 
its  advocates.  The  same  term  —  the  second  result  of  the 
king's  policy  —  the  Convocation  was  compelled  to  surrender 
its  right  of  meeting  and  legislating,  and  to  consent  to  a 
revision  of  the  canon  law  to  be  carried  into  execution  by 
a  mixed  body  of  clergy  and  laity  whom  the  king  should 
appoint.  This  last  concession  sealed  the  fate  of  the  old 
scientific  study  of  the  canon  law,  which  as  we  have  seen, 
was  a  distinctly  popish  study;  and,  if  it  had  not  been  ac- 
companied by  a  limiting  clause,  allowing  the  old  canons, 
so  far  as  they  were  not  opposed  to  the  law  of  the  land, 
to  stand  until  the  revision  was  published,  there  would  have 
been  an  entire  abolition  of  ecclesiastical  jurisdiction  of  any 
kind.  In  1535  Cromwell,  as  the  king's  vicegerent,  visited 
the  two  Universities,  and  in  both  issued  injunctions,  that 
both  the  old  scholastic  teaching  of  the  Sentences  should 
cease,  and  that  the  teaching  in  the  Decretals  and  the  con- 
ferring of  degrees  in  canon  law  should  be  abolished.  What 


8.     STUBBS:    THE    CANON   LAW  275 

the  exact  legal  force  of  Cromwell's  injunctions  was  has 
never  been  determined ;  but  in  these  points  they  were  obeyed : 
the  Universities  ceased  to  teach  the  systematic  theology  of 
the  Schools  and  the  systematic  jurisprudence  of  the  Decre- 
tals ;  and  the  ancient  degrees  of  bachelor  and  doctor  of  the 
canon  law  are  known,  except  during  the  reign  of  Mary,  no 
more.  How  did  this  affect  the  civil  law?  you  ask:  well,  just 
as  it  might  be  expected;  the  scientific  study  was  abolished, 
the  old  canons  were  in  abeyance,  but  the  courts  continued 
to  practise,  the  civil  law  procedure  was  as  lively  as  ever; 
and  students  who  intended  to  practise  as  advocates  took 
degrees  in  civil  law  instead  of  in  both.  Oxford  dropped  the 
canon  law  degree  altogether;  Cambridge,  by  adopting  a 
more  general  form,  retained  a  shadowy  presentment  of  the 
double  honour. 

And  now  we  come  again  to  an  Act  which  shows  the  con- 
tinuity of  the  inherent  rivalry  between  two  systems  which, 
for  the  sake  of  mutual  profit,  had  so  long  worked  together. 
In  1541  a  bill  was  introduced  into  parliament  which  enabled 
married  D.  C.  L.'s  to  exercise  ecclesiastical  jurisdiction  as 
chancellors  and  commissaries ;  it  did  not  pass  in  that  year, 
being  withdrawn  on  the  request  of  Convocation,  but  was  re- 
introduced  and  passed  in  1545.  So  long  as  the  two  degrees 
were  granted  together,  the  D.  C.  L.'s  were,  as  doctors  of  de- 
crees, bound  by  the  canon  which  forbade  a  married  man 
to  act  as  an  ecclesiastical  judge;  but  now  the  right  of  the 
D.  C.  L.  simple,  both  to  marry  and  to  act  as  a  judge,  was 
secured:  as  the  civil  doctors  of  Bologna  had  done  in  the 
thirteenth  century,  their  successors  in  England  now  mar- 
ried; before  this  they  were  probably,  as  a  rule,  in  minor 
orders. 

I  must  pass  over  the  more  important  of  Henry  VIII's 
other  acts,  especially  the  Statutes  of  Appeals  and  Submis- 
sion, except  just  to  recall  the  fact  that  in  the  preamble  to 
the  former  of  those  Acts  passed  in  1533  he  had  expressed 
himself  confident  that  the  realm  of  England  would,  as  it 
always  had  done,  provide  a  sufficient  number  of  spiritual 
men  to  decide  spiritual  questions,  and  of  secular  men  to 
decide  secular  questions,  under  his  own  supreme  authority 


276    //.     FROM    THE   1100'S    TO    THE    1800'S 

and  to  the  exclusion  of  any  foreign  jurisdiction.  The  other 
matters  in  which  those  statutes  affected  ecclesiastical  juris- 
diction lie  somewhat  deeper  than  our  present  speculations. 

We  are  not  however  to  suppose  that,  when  the  king  prac- 
tically abolished  the  canon  law,  he  jntended  to  hand  the  clergy 
over  to_the  common  lawyers.  The  procedure  was,  as  we  have 
seen,  still  kept  in  the  hands  of  the  civilians ;  but  the  theo- 
logians were  a  body  of  men  whose  functions  had  been  to 
some  extent  usurped  by  the  canonists,  and  who  now  for  some 
years,  under  Tudor  and  Puritan  and  Laudian  influences, 
were  to  come  to  the  front.  The  theologians  or  divines  di- 
vided with  the  canonico-civilians  the  authority  of  the  eccle- 
siastical jurisdiction:  the  character  of  a  bishop  in  itself 
was  that  of  a  divine,  not  of  a  lawyer,  and  we  might  almost 
say  that  whilst  questions  of  application  of  law  and  pro- 
cedure belonged  to  the  lawyer,  the  interpretation  was  claimed 
for  the  divine.  In  cases  of  heresy,  for  instance,  the  theo- 
logians formulated  the  definition,  whilst  the  canonists  and 
civilians  examined  the  teaching  of  the  accused  and  deter- 
mined how  far  he  had  contravened  the  definition.  So  in  the 
question  of  Henry's  divorce,  the  divines  had  been  called  on 
to  define  *  Can  the  pope  dispense  with  a  marriage  with  a 
deceased  brother's  wife? '  the  canonists  had  to  determine 
whether  the  marriage  between  Arthur  and  Katharine  was 
such  a  marriage  as  precluded  the  dispensation.  This  rule 
of  combining  theologians  with  canonists  or  civilians  for  com- 
missions on  ecclesiastical  suits  continued  long  after  the  Ref- 
ormation, and  ought  never  to  have  been  disused. 

These  measures  of  change,  sufficiently  drastic  one  would 
think,  had  in  this  department  satisfied  Henry  VIII;  the 
scheme  for  revising  the  canon  law  hung  fire;  the  powers 
granted  to  the  king  in  1534  were  renewed  for  three  years  in 
1536,  and  again  for  his  life  in  1544,  but  nothing  was  done 
in  the  matter  during  the  remainder  of  the  reign.  But  what 
had  sufficed  Henry  VIII  did  not  suffice  Somerset  or  North- 
umberland, or  the  poor  boy-king  who  succeeded  him.  The 
second  statute  of  the  first  year  of  Edward  VI  went  as  near 
as  possible  to  extinguish  the  episcopate;  there  were  still  to 
be  bishops,  but  they  were  to  be  nominated  by  the  king  with- 


8.     STUBBS:    THE    CANON   LAW  277 

out  any  form  of  election ;  they  were  as  a  matter  of  fact 
appointed  during  good  behaviour ;  and  their  jurisdiction  was 
henceforth  to  be  exercised  in  the  king's  name.  In  him  all 
ecclesiastical  authority  was  vested,  they  were  to  be  his  minis- 
ters, their  writs  were  to  be  issued  in  his  name,  their  seals 
were  to  bear  the  royal  arms ;  and  it  was  only  to  such  of 
them  as  he  pleased  that  even  such  authority  was  to  be 
intrusted.  It  was  proposed,  though  not  passed,  that  a  Court 
of  Chancery  should  be  erected  for  ecclesiastical  causes.  The 
revision  of  the  canon  law  was  to  be  urged  on,  and  the  Uni- 
versities were  to  be  further  purged  from  the  old  leaven.  All 
this  was  done:  in  vain  the  Protestant  bishops  pleaded  in  the 
House  of  Lords  that  their  position  was  intolerable  and  their 
dignity  a  mere  mockery,  that  the  moral  discipline  of  clergy 
and  people  was  entirely  broken  down ;  no  act  for  rehabil- 
itating them  was  got  through  parliament ;  the  dominant 
interests  were  opposed  to  it.  The  injunctions  sent  to  the 
Universities  prescribed  some  renewal  of  studies ;  the  poor 
canonists  of  course  were  left  out  in  the  cold,  although  not 
treated  as  if  they  were  illegal  or  irregular :  the  civilians  were 
authorised  to  read  the  Institutes,  and  the  D.  C.  L.,  when  he 
had  reached  that  dignity,  was  exhorted  to  devote  himself 
more  zealously  to  the  study  of  the  king's  laws,  both  temporal 
and  ecclesiastical.  And  work  was  to  be  found  for  him :  bills 
were  introduced  to  lodge  ecclesiastical  jurisdiction  in  the 
hands  of  students  of  the  Universities,  who  were  admitted  by 
the  archbishop.  By  these,  however,  all  special  privileges  of 
the  advocates  were  endangered  and  the  bills  dropped  after 
passing  most  stages :  four  bills  on  this  point  were  before  the 
parliament  of  1550.  But  again  the  revision  of  the  canons 
was  dragging  behind.  The  king's  power  of  nominating 
revisers  was  asserted  by  an  act  of  1550  to  last  for  three 
years,  and  an  abortive  attempt  was  made  in  the  session  of 
1552  to  renew  or  enlarge  it;  but  whether  it  was  that  Cran- 
mer  found  it  impossible  to  obtain  skilled  assistants,  or  that 
the  division  of  parties  prevented  a  joint  effort,  it  was  not 
until  near  the  end  of  the  reign  that  the  project  was  carried 
on:  in  1551  and  1552  Edward  issued  two  commissions  of 
thirty-two,  composed  of  equal  numbers  of  bishops,  divines, 


278    //.     FROM    THE    1100*S    TO    THE    1800'S 

civilians,  and  common  lawyers;  the  number  thirty-two  was 
reduced  to  eight;  practically  the  work  was  done  by  Peter 
Martyr,  the  Oxford  Professor  of  Divinity,  under  Cranmer's 
eye,  and  the  result  was  the  compilation  known  as  the  Refor- 
matio  Legum;  a  curious  congeries  of  old  and  new  material 
which  really  pleased  no  party ;  showing  too  much  respect  for 
antiquity  and  divine  ordinance  to  please  the  Puritan,  and 
too  little  to  satisfy  the  men  who  had  guided  the  Reforma- 
tion under  Henry  VIII  and  those  who  were  to  do  so  under 
Elizabeth. 

The  legislation  and  policy  of  Mary  were  directed  to  uproot 
everything  \h*r  WA^**fl  yfl  frorl  originated ;  his  bishops 
appointed  '  quamdiu  se  bene  gesserint,'  were  dispossessed 
without  a  struggle;  his  laws  were  repealed,  many  of  them 
never  to  be  revived ;  his  advisers,  where  they  would  not  com- 
ply, were  exiled  or  burned:  but  the  efforts  to  reinstate  the 
old  system  were  not  successful ;  the  monastic  property  could 
not  be  restored;  the  ranks  of  the  lower  clergy,  reduced 
to  a  fraction  by  the  abolition  of  chauntries  and  private 
masses,  could  not  be  recruited;  and  all  the  restored  fabric 
hung  on  the  life  of  a  woman  and  a  few  worn-out  old  men. 
For  the  moment  the  canon  lawyers  lifted  up  their  heads, 
and  a  few  civilians  took  the  doctorate  of  decrees  at  Oxford 
and  Cambridge;  but  the  complete  extinction  of  reactionary 
forces,  on  Mary's  death,  showed  that  the  Papal  system, 
with  all  that  was  dangerous  to  national  life  contained  in  it, 
was,  so  far  as  England  was  concerned,  practically  extinct: 
six  years  of  blood  and  fire,  of  tears  and  prayers,  of  cruel 
jealousies  and  heartbreaking  divisions,  wrought  this;  and 
Elizabeth  for  some  years  after  her  accession  had  before  her 
a  task,  not  certainly  easy,  but  not  encumbered  with  insuper- 
able difficulties. 

The  subject  which  we  are  treating  now  contracts  its  limits ; 
for  to  attempt  anything  like  circumstantial  discussion  of  the 
legal  history  of  a  period  into  which  ecclesiastical  quarrels  so 
largely  enter,  would  be  to  lose  oneself  at  once  in  a  wilderness 
of  controversy.  I  must  content  myself  with  a  few  generali- 
sations and  a  few  significant  facts.  The  Elizabethan  settle- 
ment in  Church  and  State  was  a  compromise,  satisfactory 


8.    STUBBS:   THE   CANON   LAW  279 

to  no  party,  and  very  unsatisfactory  indeed  to  the  con- 
stitutional lawyer  or  historian ;  but,  possibly,  the  best  ar- 
rangement compatible  with  circumstances.  She  began  her 
reign,  of  course,  by  a  reversal  of  her  sister's  legislation ; 
but  she  did  not  restore  the  Edwardian  system ;  she  did  not 
revive  the  Act  of  Henry  VIII  which  had  asserted  the  king's 
headship  of  the  Church,  or  the  Act  of  Edward  which  deprived 
the  bishops  of  all  original  jurisdiction:  the  doctrine  of  the 
headship  was  opposed  both  by  the  Puritans  and  by  the  Cath- 
olic party ;  the  abolition  of  all  the  high  functions  of  the 
episcopate  which  was  aimed  at  by  Edward's  advisers  was  a 
measure  which  contemporary  history  was  showing  to  be  dan- 
gerous. But,  whilst  she  minimised  the  definition  of  authority, 
she  retained  the  virtual  exercise  of  it:  her  explanation  of 
her  supreme  governorship  might  have  satisfied  every  one 
but  the  most  Tridentine  papist,  but  she  re-enacted  the  most 
stringent  part  of  her  father's  act  of  supremacy ;  and,  whilst 
she  allowed  the  continuance  of  the  church  jurisdiction,  she 
kept  all  control  over  the  religious  discipline  of  clergy  and 
laity  under  the  hands  of  the  Court  of  High  Commission. 
The  Court  of  High  Commission,  consisting  of  a  large  number 
of  lawyers  and  laymen  and  a  small  number  of  bishops  and 
divines,  stands  to  the  Church  in  much  the  same  relation  as 
the  Court  of  Star  Chamber  stands  to  the  Courts  of  Common 
Law,  and  the  Court  of  Requests  to  Chancery,  a  legal  but 
most  unconstitutional  relation,  and  one  which,  however  long 
it  might  be  tolerated,  was  sure  in  the  long  run  to  endanger 
the  whole  fabric.  As  for  legislation,  Elizabeth  acted,  as  we 
know,  on  a  high  principle  of  supremacy;  such  measures  of 
church  discipline  as  required  coercive  authority  she  allowed 
the  parliaments  to  pass,  but  she  forbade  any  interference 
whatever  where  that  authority  was  not  necessary.  As  for 
the  ecclesiastical  legislation  in  Convocation,  she  exercised  her 
veto,  i.  e.  she  granted  or  withheld  the  consent  which  would 
make  it  valid,  according  to  her  own  views  of  high  policy. 
The  rulers  of  the  Church,  who  were  not  free  from  the  same 
humiliating  bondage  of  adulation  that  influenced  all  around 
the  great  queen,  tolerated  a  system  which  gave  them  the  sub- 
stance of  power,  although  in  an  unpopular  and  unhistorical 


280    77.     FROM    THE    1100'S    TO    THE    1800'S 

shape.  Their  legislative  authority  was  paralysed,  but  they 
could  exercise  a  real  authority  as  the  queen's  advisers;  and 
the  jurisdiction,  which  they  had  difficulties  in  enforcing 
through  their  own  courts,  they  could  enforce  as  members  of 
the  High  Commission  Court.  But  the  ecclesiastical  law  — 
how  did  it  fare  under  the  circumstances?  In  the  first  place 
the  forms  of  the  courts  were  maintained,  and  were  enough 
to  sustain  the  civilians  who  worked  in  them ;  the  Prerogative 
Court  and  the  consistory  courts  lived  on  the  testamentary 
and  matrimonial  jurisdiction ;  and  before  the  spiritual  courts 
were  tried  the  smaller  cases  of  discipline  which  were  not 
important  enough  for  the  High  Commission  Court.  Doctors* 
Commons,  which  had  dwelt  before  in  Paternoster  Row  or  at 
the  Queen's  Head,  under  the  auspices  of  Dr.  Henry  Harvey, 
built  itself  a  new  home,  with  hall  and  library  and  plate  and 
privileges  for  importing  wine.  Knowledge  of  canon  and  civil 
law  was  in  parliament,  as  in  1585,  regarded  as  a  special 
qualification  for  service  in  the  House  of  Commons  on  com- 
mittees. In  the  parliaments  of  1559  and  1563  were  intro- 
duced bills  to  make  a  University  degree  necessary  for  ecclesi- 
astical judges.  And  the  canon  law,  as  drawn  up  by  Lynd- 
wood,  and  the  civilian  procedure,  subsisted,  for  the  revision 
which  had  been  completed  by  Edward's  commissioners  did  not 
approve  itself  to  Elizabeth  or  her  advisers,  and  after  an 
abortive  attempt  to  carry  it  through  the  parliament  of  1559, 
took  its  place  on  the  shelf  of  broken  projects.  Even  the 
Court  of  High  Commission,  novel  as  its  functions  were  and 
unfettered  as  it  was  in  the  exercise  of  them,  condescended 
to  borrow  from  the  canonical  jurisprudence  some  of  its  most 
offensive  details,  its  ex  officio  oath  and  the  censures  by  which 
it  would  enforce  its  sentences. 

It  was  a  strange  composite  system,  perhaps  the  only  one 
possible  consistently  with  the  retention  of  historic  continuity, 
but  obviously  and  most  certainly  tolerable  only  for  a  time. 
What  was  the  attitude  of  theologians,  of  common  lawyers, 
and  of  canonists  towards  this  critically-balanced  structure? 
To  the  true  theologians,  whether  Catholic  or  Puritan,  the 
whole  was  repulsive:  we  see  this  in  the  half-hearted,  almost 
despairing  adhesion  of  Archbishop  Parker,  and  in  the  strong 


8.     STUBBS:    THE    CANON   LAW  281 

and  justifiable  protests  of  the  Puritans;  and  I  mention  them 
with  respect  here,  because  this  opposition  to  unconstitutional 
tyranny  is  the  only  point  in  which  I  have  any  sympathy 
with  them;  their  tenets  I  hold  to  be  untenable,  and  their 
methods  of  promoting  them  by  calumny,  detraction,  and 
coarse  ribaldry  I  think  entirely  detestable;  but  I  do  think 
they  were  right  in  denouncing  the  Court  of  High  Commis- 
sion and  all  its  works.  Even  conservative  churchmen  like 
Hooker,  in  their  defence  of  the  ecclesiastical  system,  are 
hampered  by  the  consciousness  that  much  of  what  existed 
was  indefensible.  The  bishops  saw  their  position  as  bishops 
ignored,  and  the  Puritans  saw  the  power  which  they  thought 
should  be  exercised  by  their  own  ministers  exercised  through 
a  royal  commission:  the  bishops  however  had  the  power  and 
endured  the  ignominy,  the  Puritans  suffered  and  waited  for 
their  turn  to  persecute. 

The  lawyers  were  not  all  of  one  mind;  Coke  the  great 
lawyer  was  himself  of  two  minds ;  he  liked  the  crown  better 
than  the  episcopate,  but  he  loved  the  common  law  better 
than  the  crown ;  and  his  inconsistency  produces  some  curious 
results  on  his  teaching.  This  leads  us  to  two  or  three  facts. 
From  1587  to  1591  the  famous  Cawdrey's  case  drew  its 
grievous  length  along.  The  High  Commission  had  deprived 
Cawdrey  for  nonconformity ;  the  question  arose,  had  the 
Commission  under  the  terms  of  the  Act  of  the  queen's  first 
year  exceeded  its  authority?  The  resolution  finally  adopted 
by  all  the  judges,  and  recorded  and  approved  by  Coke, 
affirmed  that  the  ecclesiastical  prerogative  of  the  crown  was 
such  that  the  powers  of  a  commission  issued  by  it  were  not 
limited  by  that  statute,  but  covered  the  whole  range  of  eccle- 
siastical jurisdiction;  and  therefore  the  sentence  was  good. 
The  judgment  in  Cawdrey's  case,  full  of  bad  law  and  worse 
history,  is  often  referred  to  even  now  by  lawyers  with  a 
respect  which  it  does  not  merit ;  here  it  is  useful  as  showing 
to  what  lengths  the  common  lawyers  under  Elizabeth  would 
go  in  support  of  the  authority  of  the  crown  over  things 
ecclesiastical.  It  stimulated  the  Puritans  in  and  out  of  the 
Church  to  bitterer  action,  and  disabled  the  hands  of  the 
bishops  who,  like  AndreWes,  would  rather  have  taken  the 


282     //.     FROM    THE    IIOO'S    TO    THE    1800'S 

responsibility  of  their  own  acts.  Twenty  years  later  Coke 
himself  declared  against  the  constitutional  character  of 
the  Court  of  High  Commission,  and,  by  refusing  to  act 
upon  it,  paved  the  way  for  its  downfall.  But  Coke  was 
then  in  opposition  to  the  king's  advisers,  and  made  it 
his  account  to  be  an  independent  judge.  But  I  am  antici- 
pating. 

The  .change  of  Elizabeth  for  James  I  was  a  critical  event 
in  English  Church  history.  James's  dealings  with  the  Church 
are  not  among  the  strongest,  but  are  perhaps  among  the 
least  reprehensible  parts  of  his  administration.  He  willingly 
confirmed  the  canons  of  1604,  which  make  a  substantive  addi- 
tion to  the  canonical  lore'  of  the  clergy.  He  failed  to  secure 
co-operation  between  the  House  of  Commons  and  the  Con- 
vocation, or  between  the  bishops  and  the  Puritan  divines. 
But  this  is  no  wonder.  A  House  of  Commons  which  could 
listen  to  Sir  Herbert  Crofts  declaring  that  the  Church  had 
declined  ever  since  doctors  began  to  wear  boots ;  or  could 
expel  Mr.  Sheppard,  M.  P.  for  Shaftesbury,  for  explaining 
that  *  dies  Sabbati '  meant  not  the  Sabaoth  as  they  called 
it,  but  Saturday,  and  suggesting  that  as  David  danced  before 
the  ark,  the  legality  of  dancing  was  a  question  on  which  the 
bishops  might  decide  before  it  was  altogether  forbidden,  — 
such  a  House  of  Commons  was  not  likely  to  impress  men  like 
Hooker  or  Andrewes  with  respect,  or  King  James  either. 
It  is  clear  I  think  that,  if  the  Puritan  party  had  been  well 
represented  at  the  Hampton  Court  'Conference,  James  would 
have  seen  justice  done  to  them;  but  he  saw  their  intolerance 
and  their  frivolity,  and  the  balance  remained  unredressed. 
One  of  their  minor  complaints,  against  the  issuing  of  eccle- 
siastical sentences  by  lay  chancellors,  touches  directly  on  our 
subject:  their  idea  was  to  give  all  the  disciplinary  power  to 
the  clergy,  but  to  their  own  clergy :  the-  prelates  of  the  time 
chose  to  maintain  the  status  quo  which  left  the  power  where 
it  was.  On  this  point  the  civilians  were  peremptory.  Some 
of  the  prelates,  either  wishful  to  promote  their  sons  or  willing 
to  lodge  Church  discipline  in  clerical  hands,  appointed  clergy- 
men to  be  chancellors.  The  doctors  took  umbrage  at  this, 
petitioned  King  Charles  I  in  1625,  and  obtained  from  him 


8.     STUBBS:    THE    CANON   LAW  283 

an  order  to  remove  the  intruding  officials  and  to  substitute 
qualified  civilians. 

Another  interesting  point  arises  at  James's  accession.  In 
the  hurry  of  his  first  parliament  the  Act  of  Mary  which  re- 
pealed the  1  Edw.  VI.  c.  2,  by  which  the  conge  d'eslire  and 
the  independent  jurisdiction  of  the  bishops  were  abolished, 
was  itself  repealed ;  and  the  lawyers,  or  some  of  them,  held 
that  the  Edwardian  law  was  revived,  that  the  whole  epis- 
copate was  intrusive,  and  the  whole  of  the  Church  courts 
illegal.  This  was  long  in  controversy,  and  it  was  only  in 
1637  that  the  judges  finally  resolved  that  the  law  of  Ed- 
ward, as  contravening  a  law  of  Henry  VIII  which  had  been 
formally  re-enacted,  was  not  revived  by  the  repeal  of  the 
Marian  statute.  If  that  resolution  had  not  been  accepted, 
the  whole  existing  fabric  of  the  Church  must,  so  far  as 
secular  interests  were  concerned,  have  fallen  to  the  ground. 

But  the  opening  of  James  I's  reign  is  important  for  a 
third  critical  question.  In  1605  Archbishop  Bancroft  pre- 
sented from  Convocation  a  series  of  articles  against  the  pro- 
ceedings of  the  common  law  judges  in  issuing  prohibitions 
and  claiming  the  exclusive  right  to  interpret  acts  of  parlia- 
ment touching  the  Church.  The  long  argument  on  this 
subject,  which  is  to  Coke's  Second  Institute  what  Cawdrey's 
case  is  to  the  Reports,  is  of  considerably  greater  weight ; 
no  doubt  there  was  much  to  be  said  on  both  sides,  and  the 
voice  of  the  Convocation  of  1605  was  in  harmony  with  that 
of  1559  and  1446,  where  the  claims  of  the  theologians  to 
interpret  acts  that  touched  theology  were  fairly  stated ;  but 
Coke  embellishes  the  report  with  words  that  have  an  amusing 
cogency  even  in  the  present  day;  'for  judges  expounding 
of  statutes  that  concern  the  ecclesiastical  government  or 
proceedings,  it  belongeth  unto  the  temporal  judges,  and  we 
think  they  have  been  expounded  as  much  to  the  clergy's 
advantage  as  either  the  letter  or  intention  of  laws  would  or 
could  allow  of :  and  when  they  have  been  expounded  to  their 
liking  then  they  could  approve  of  it,  but  if  the  exposition  be 
not  for  their  purpose  then  they  will  say  as  now  they  do  that 
it  appertaineth  not  unto  us  to  determine  of  them.'  Anyhow 
the  judges  agreed  that  they  were  the  proper  interpreters  of 


284    //.     FROM    THE    1100'S    TO    THE    1800'S 

the  acts  of  parliament ;  and  as  the  whole  liturgy,  and  indeed 
the  Bible  also,  might  be  brought  under  those  terms,  there 
was  practically  no  limit  to  their  assumption  of  infallibility; 
for  the  common  law  judges  could  not,  like  theologians,  afford 
to  leave  any  question  unsolved. 

Well,  Coke  was  right  as  to  the  bishops,  as  was  proved  in 
1612,  when  the  common  lawyers  allowed  bishops  King  and 
Neill  to  burn  two  heretics  under  a  common  law  writ,  for 
which  Coke's  authority  might  be  pleaded,  although  all  the 
earlier  legislation  against  heretical  pravity  had  been  abro- 
gated. The  invulnerability  of  the  common  law  which  had 
maintained  the  High  Commission  in  Cawdrey's  case,  now 
treated  the  issue  of  the  writ  '  de  heretico  comburendo '  as  a 
matter  of  its  own,  and  brought  equal  shame  on  theology 
and  jurisprudence.  The  heretics  who  were  burned  were  men 
whom  the  Puritans  did  not  care  to  defend ;  they  would  have 
burned  them  as  willingly  as  they  would  have  done  the  bishops. 

And  here  let  me  say  by  the  way,  great  as  the  horrors  of 
religious  persecution  are,  they  cannot  be  properly  estimated 
without  some  consideration  of  the  value  set  upon  human 
life  both  at  the  period  in  which  they  occur  and  at^  other 
times:  I  believe  that  I  could  show  that  all  the  executions 
for  religious  causes  in  England,  by  all  sides  and  during  all 
time,  are  not  so  many  as  were  the  sentences  of  death  passed 
in  one  year  of  the  reign  of  George  III  for  one  single  sort 
of  crime,  the  forging  of  bank-notes. 

But  I  must  pass  on,  leaving  the  Laudian  period  altogether 
out  of  sight:  and  indeed  it  is  not,  for  our  purpose,  so  im- 
portant as  the  earlier  portion:  Laud  and  Charles  were, 
neither  of  them,  men  who  were  satisfied  with  such  things  as 
the  High  Commission  Court,  and  the  sinking  of  ecclesiastical 
discipline  in  the  state  administration ;  but  they  did  not 
make  their  way  to  any  better  system,  and  supported  that 
which  was  to  them  for  the  time  the  only  possible  system. 
With  the  opening  of  the  struggle  in  164-1  the  Court  of 
High  Commission  fell  to  the  ground,  and  at  the  Restora- 
tion its  abolition  was  confirmed  by  the  first  parliament  of 
Charles  II. 

During  the  Elizabethan  and  Jacobean  period  the  study  of 


8.     STUBBS:    THE    CANON   LAW  285 

church  law  had  not  been  neglected;  for  it  had  shared  the 
benefit  of  the  great  historical  and  antiquarian  revival  of 
which  Parker  was  the  first  leader,  to  which  Spelman  belonged, 
and  which  reached  its  climax  in  Selden  and  Prynne.  Both 
of  these  eminent  writers  studied  canon  law  from  antagonistic 
grounds:  Selden  regarded  it  as  a  philosopher  ardent  for 
liberty;  Prynne  as  an  enthusiast,  who  had  his  own  persecu- 
tion to  avenge  and  the  thesis  of  royal  prerogative  to  defend 
with  all  the  zeal  and  learning  of  a  convert.  Selden  was  a 
real  jurist;  Prynne  an  indefatigable  searcher  of  records. 
But,  when  at  the  Restoration  the  removal  of  the  incubus 
of  the  High  Commission,  and  the  political  education  which 
the  Caroline  divines  had  gone  through,  enabled  them  to 
restore  the  old  ecclesiastical  jurisdiction  with  some  hope  of 
honest  and  successful  issue,  the  canonists  and  civilians 
showed  that  life  was  still  in  them.  The  old  black-letter 
Lyndwood  was  taken  down  from  the  shelf,  rebound,  and 
annotated.  Dr.  Sharrock  in  1664  abridged  the  Provincial  for 
the  use  of  students,  and  in  1679  the  Oxford  edition,  which 
rapidly  displaced  the  black-letter,  was  published  with  all 
Lyndwood's  commentaries  and  Ayton's  work  on  the  Con- 
stitutions. The  study  of  the  civil  law  needed  no  revival; 
it  had  been  kept  up  by  the  antiquaries  and  admiralty  in  the 
worst  times ;  and,  in  the  Universities,  the  faculty  fellowships 
secured  at  least  a  languid  succession  of  law  degrees.  The 
D.  C.  L.  of  Oxford  too  had  achieved  the  dignity  which  now 
belongs  to  the  honorary  degrees  at  Commemoration;  and  in 
1649,  at  what  Antony  Wood  calls  the  Fairfaxian  Creation, 
both  Fairfax  and  Cromwell  were  made  doctors  of  the  civil 
law.  According  to  Wood,  in  1659  Nicolas  Staughton,  of 
Exeter  College,  was  admitted  doctor  both  of  civil  and  canon 
law;  and  it  is  not  impossible  that  there  were  other  attempts 
to  revive  the  canon  law  doctorate  as  an  adjunct  to  the  degree 
in  civil  law.  Cambridge  had  always  retained  the  shadow  of 
the  double  degree,  for  the  Leges  or  LL.  to  which  she  admits 
her  doctors  are  a  possible  survival  of  the  *  Utrumque  Jus  '  of 
the  old  University  system ;  and  in  1669,  Richard  Pearson, 
brother  of  Bishop  Pearson  the  commentator  on  the  Creed, 
claimed  to  be  admitted  in  distinct  terms  to  both  faculties. 


286    //.     FROM    THE    1100'S    TO    THE    1800'S 

The  Archbishop  of  Canterbury  also,  under  the  Dispensation 
Act,  has  the  unquestioned  right  to  make  a  doctor  of  canon 
law,  although  I  am  not  sure  that  it  has  ever  been  exercised. 
But  at  Oxford  the  designation  of  the  degree  had  latterly 
come  to  be  restricted  to  civil  law;  and  when  in  1715,  or 
thereabouts,  Mr.  Charles  Browne  of  Balliol  College  applied 
to  the  Vice-Chancellor,  Dr.  Gardiner,  for  leave  to  proceed  as 
bachelor  and  doctor  of  the  canon  law,  he  was  told  that  he 
could  not  be  prevented  from  doing  so  if  he  wished  it,  but  that 
it  would  give  the  University  a  great  deal  of  trouble ;  and  the 
poor  man  died  before  he  achieved  the  object  of  his  ambition. 
These  notes  are,  however,  of  little  importance,  except  as 
illustrating  the  revival  of  the  ancient  study,  and  the  attention 
which  the  ecclesiastical  questions  of  the  day  were  calling  to 
ancient  practice.  In  point  of  fact,  the  whole  of  the  second 
and  last  act  of  the  Stewart  dynasty  was  full  of  ecclesiastical 
questionings  and  excitements,  which,  though  they  did  not 
directly  touch  our  subject,  stimulated  the  studies  most  closely 
connected  with  it.  The  struggle  under  James  II,  the  position 
of  the  Non jurors,  the  relation  of  Convocation  to  Parliament, 
the  Whistonian  and  Bangorian  controversies,  all  drew  in 
lively  partisans  to  the  investigation  of  legal  and  ecclesiastical 
problems.  The  names  of  Hody,  Kennet,  Atterbury,  Wake, 
and  Gibson,  all  leading  Oxford  men,  and  men  of  deep  re- 
search and  minute  if  not  accurate  reading,  are*  conspicuous 
in  this  regard.;  and,  as  for  constitutional  purposes  it  may  be 
said  that  the  very  dust  of  their  writings  is  gold,  it  would  be 
ungrateful  indeed  to  speak  of  their  earnestness  in  the  main 
object  as  misplaced.  Gibson  stands  out  more  distinctly  than 
any  of  the  others  as  a  great  canonist,  and  his  Codex  or 
Collection  of  English  Church  Statutes  is  still  the  standard 
work  and  treasury  of  all  sorts  of  such  lore.  There  were  too 
Johnson,  Wilkins,  and  many  other  honest  and  subordinate 
workers  on  the  theological  as  well  as  on  the  legal  side.  But 
the  history  of  this  department  of  law  draws  quickly  to  an 
end.  The  Hanoverian  policy  with  regard  to  the  Church  and 
Convocation  fell  on  all  politico-ecclesiastical  life  as  a  blight. 
The  Non  jurors  were  left  out  of  the  pale  of  the  recognised 
laity,  the  common  lawyers  edged  the  theologians  out  of  the 


8.     STUBBS:    THE    CANON   LAW  287 

court  of  delegates,  the  Convocations  were  silenced,  and  the 
bishops,  almost  as  much  as  in  Elizabeth's  time,  made  their 
position  in  the  House  of  Lords  the  fulcrum  of  all  the  force 
they  ventured  to  exercise.  Except  for  testamentary  causes, 
and  rare  occasions  of  matrimonial  and  slanderous  causes,  the 
Church  jurisdiction  ceased  to  exist,  and  so  continued  dormant 
until  in  our  times,  in  1849  and  in  1850,  the  Gorham  case 
roused  the  attention  of  both  lawyers  and  clergymen  to  the 
fact  that  without  knowing  it  they  had  let  the  centre  of 
ecclesiastical  gravity  become  seriously  misplaced.  Into  this 
region  of  discussion,  for  many  reasons,  I  must  not  attempt 
now  to  make  my  way. 

A  few  years  after  the  Gorham  controversy,  a  change  or 
series  of  changes  set  in  from  another  quarter:  the  matri- 
monial jurisdiction  was  remodelled  when  the  facilities  for 
divorce  were  increased,  and  the  whole  testamentary  jurisdic- 
tion was  withdrawn  from  the  nominal  superintendence  of  the 
archbishops.  The  Courts,  the  profits  and  privileges  of  which 
had  so  long  maintained  the  close  corporation  of  Doctors' 
Commons,  and  had  caused  the  study  of  canon  law  in  some 
at  least  of  its  branches  to  be  languidly  pursued,  were  radi- 
cally and  fundamentally  changed ;  and,  although  it  was  dif- 
ficult at  once  to  improvise  new  forms  and  rules  of  procedure 
to  take  the  place  of  the  ancient  forms  and  those  which  had 
grown  out  of  them,  these  forms  also  were  doomed.  In  the 
still  more  recent  remodelling  of  the  whole  judicial  system 
further  changes  have  forced  themselves  in;  and  where  the 
lawyers  could  find  it  their  policy  to  acquiesce  in  the  consoli- 
dation of  the  common  law  and  chancery,  they  could  without 
the  slightest  reluctance  throw  the  ecclesiastical  and  admiralty 
law  into  the  same  cauldron.  Out  of  that  cauldron  arises  a 
new  supreme  judicature,  which  requires,  every  two  or  three 
years,  to  be  amended  and  strengthened.  It  is  supposed  that 
thereby  justice  is  quickened  and  law  made  so  cheap,  that  any 
man,  poor  or  rich,  may  ruin  himself  with  a  light  heart.  It 
yet  remains  to  be  seen  whether  this  amended  system,  easier 
and  less  intricate  than  the  old,  supplies  as  good  material  for 
training  or  provides  as  sound  schools  of  lawyers.  It  is  no 
doubt  philosophically  more  capable  of  perfection.  The  lore 


288    //•     FROM    THE    1100'S    TO    THE    1800'S 

of  Coke  and  Selden,  like  the  lore  of  Eldon  and  Stowell,  is 
for  the  present  at  a  discount.  Of  course  looking  on  all  this 
with  a  historical  eye,  one  is  apt  to  be  a  little  disconsolate; 
but  time  will  avenge  them,  and  the  neo-legal  jurisprudence 
will  soon  have  an  array  of  reports  and  decisions  that  will 
outweigh,  physically  at  least,  the  Year-books  and  Institutes. 
As  for  the  ecclesiastical  law,  which  by  its  very  nature,  if 
it  loses  continuity,  loses  identity,  in  the  present  changing 
aspect  of  the  world's  politics,  I  for  my  part  do  not  intend  to 
prophesy.  No  one  can  investigate  the  letter  and  working 
of  the  canon  law  without  being  struck  by  the  marvellous 
mixture  of  lofty  and  eternal  principles  of  right,  with  arbi- 
trary and  disingenuous  evasions  of  obligation :  it  reads  as  if 
the  jurists,  finding  that  the  Church  could  not  be  ruled  by  the 
true  principles,  were  determined  to  rule  by  special  pleadings 
and  artful  circumventions.  For  the  future  the  theologians 
must  look  to  the  true  principles,  and  let  the  canonists  and 
civilians  pass  with  their  evasions  and  circumventions  into  the 
twilight  of  archaeology.  Whether  that  will  be  so  or  not, 
or  how  soon,  we  may  some  of  us  live  to  see. 


9.     THE    DEVELOPMENT    OF    THE    LAW 
MERCHANT    AND    ITS    COURTS1 

BY  WILLIAM  SEAELE  HOLDSWORTH  2 

IN  this  chapter  we  shall  consider  certain  courts  which  ad- 
minister a  body  of  law  outside  the  jurisdiction  of  the 
Courts  of  Common  Law  and  the  Courts  of  Equity.  These 
courts  fall  into  four  groups :  —  ( 1 )  The  Courts  which  ad- 
minister the  Law  Merchant;  (2)  The  Court  of  the  Constable 
and  the  Marshal ;  (3)  The  Courts  of  the  Forest;  (4)  The 
Ecclesiastical  Courts.  Some  of  these  courts,  and  some  of  the 
bodies  of  law  which  they  have  created,  still  continue  to  be 
outside  the  ordinary  jurisdiction  of  the  courts  of  law  and 
equity.  Others  have  practically  ceased  to  exist.  Others  have 
been  absorbed  into  their  system.  At  an  early  stage  of  their 
history  the  Council  and  the  Chancery  had  an  intimate  relation 
with  many  of  these  courts.  This  connection  with  the  Council 
has  been  maintained,  and  even  strengthened.  It  was  to  the 
Judicial  Committee  of  the  Privy  Council  that  appeals  were, 
and  in  some  cases  still  are  brought  from  such  of  those  courts 
of  a  special  jurisdiction  which  still  remain. 

(1)   The  Courts  which  administer  the  Law  Merchant. 

The  Law  Merchant  of  primitive  times  comprised  both  the 
maritime  and  the  commercial  law  of  modern  codes.  From 
the  earliest  period  in  their  history  an  intimate  relationship 
has  subsisted  between  them.  Both  applied  peculiarly  to  the 

1  This  passage  is  extracted  from  "  A  History  of  English  Law,"  1903, 
volume  I,  c.  vii,  pp.  300-337  (London:  Methuen  &  Co.). 

With  this  Essay  compare  those  in  Volume  II  under  Commercial  Law. 

*  Lecturer  in  Law  at  St.  John's,  Wadham,  and  Hertford  Colleges,  Ox- 
ford. B.  A.  Oxford,  1893;  M.  A.,  B.  C.  L.  1897;  D.  C.  L.  1904;  Bar- 
rister of  Lincoln's  Inn;  Lecturer  at  New  College,  1895;  Vice-President 
of  St.  John's  College,  1902-1903;  Professor  of  Constitutional  Law  in 
University  College,  London,  1903. 

Other  Publications:   Law  of  Succession,  1899. 


290    //.    FROM    THE    1100'S    TO    THE    1800'S 

merchants,  who,  whether  alien  or  subject,  formed  in  the  Mid- 
dle Ages  a  class  very  distinct  from  the  rest  of  the  community. 
Both  laws  grew  up  in  a  similar  manner  from  the  customary 
observances  of  a  distinct  class.  Both  laws  were  administered 
in  either  the  same  or  in  similar  courts,  which  were  distinct 
from  the  ordinary  courts.  Both  laws  differed  from  the  com- 
mon law.  Both  had  an  international  character.1 

(a)   Maritime  Law. 

We  find  that  the  maritime  laws  of  the  Middle  Ages  were 
contained  in  certain  bodies  of  local  customs,  which,  like  all 
customary  law,  showed  a  tendency  to  expand  as  they  grew 
older.  These  bodies  of  custom  took  their  name  from  some  one 
port.  They  were  adopted  by  other  ports,  and  one  or  other 
of  them  ruled  the  coasting  trade  of  the  whole  of  mediaeval 
Europe. 2 

The  body  of  customs  adopted  by  England,  and  inserted 
at  a  later  date  into  the  Black  Book  of  the  Admiralty,3  were 
the  judgments  of  Oleron.  They  originated  in  the  laws  of 
the  commune  of  Oleron.  They  were  adopted  by  the  sea- 
port towns  of  Normandy  and  Brittany.  They  were  trans- 
planted to  Damme,  Bruges,  and  to  England.4  A  copy  of 
Edward's  II. 's  reign,  representing  an  early  version,  is  to  be 
found  in  the  archives  of  the  city  of  London,5  and  in  the  Red 
Book  of  Bristol.6  Such  was  the  repute  of  these  laws  of 
Oleron  that  mariners  of  other  countries  came  there  to  obtain 
the  judgment  of  its  court.7 

The  body  of  customary  sea  laws  in  force  in  the  Mediter- 
ranean was  known  as  the  Consolato  del  Mare.  It  is  probably 
of  Catalan  origin.8  It  was  probably  drawn  up  in  the  15th 
century  for  the  use  of  the  Consuls  of  the  sea  at  Barcelona, 

1  "  The  maritime  law  is  not  the  law  of  a  particular  country,  but  the 
general  law  of  nations,"  Ld.  Mansfield,  Luke  v.  Lyde  (1759)  2  Burr.  887. 
''  The  law  of  merchants  is  jus  gentium  and  the  judges  are  bound  to  take 
notice  of  it,"  Mogadara  v.  Holt  (1691),  "Shower  318. 

•Black  Book  of  the  Admiralty  (R.  S.)  5i  xxxix  seqq. 

"  This  was  a  collection  of  documents  compiled  for  the  use  of  the  Court 
of  Admiralty  not  earlier  than  Henry  VI.'s  reign.  See  Black  Book  R.  S. 
iii  x;  and  for  its  contents  i  xxviii  seqq. 

« Black  Book  of  the  Admiralty  i  Ixiii.  Cp.  R.  P.  iu  498  (4  Hy.  IV. 
n.  47), 

•  Ibid  Ixvii.          •  L.  Q.  R.  xvii  234. 

7  Black  Book  of  the  Admiralty,  ii.  xxxvii.          *  Ibid  iii  xxxiv. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   291 

from  older  collections  of  the  customs  of  seaport  towns  within 
the  kingdom  of  Aragon,1  just  as  the  Black  Book  was  drawn 
up  from  the  laws  of  Oleron  for  the  use  of  the  court  of  Ad- 
miralty in  England.  Before  they  had  thus  been  reduced  to 
writing  they  had  been  introduced  into  the  Mediterranean 
ports,  as  the  laws  of  Oleron  had  been  introduced  into  the  ports 
of  the  Atlantic  and  the  North  Sea.  "  They  were  introduced 
from  Barcelona  first  of  all  into  Valencia,  then  into  the 
island  of  Majorca,  then  into  Sicily,  then  into  Roussillon,  all 
of  which  countries  were  under  the  sceptre  of  the  kings  of 
Aragon  before  any  version  of  them  was  printed  at  Barce- 
lona. Within  half  a  century  after  they  were  printed  in  the 
Book  of  the  Consulate  of  the  Sea  at  Barcelona,  they  were 
translated  into  the  languages  of  Castile  and  of  Italy.  They 
were  further  translated  into  French  before  the  conclusion  of 
the  16th  century,  into  Latin  some  time  in  the  17th  century, 
into  Dutch  at  the  beginning  of  the  18th  century,  and  into 
German  in  the  course  of  the  same  century."  2 

From  the  Baltic  we  have  two  codes  of  sea  laws.  One 
comes  from  Lubeck ; 3  another  from  Wisby.  *  While  Lubeck 
exercised  a  preponderating  influence  upon  trade  within  the 
Baltic,  Wisby  exercised  a  similar  influence  upon  the  trade  of 
the  Baltic  with  foreign  ports.  The  famous  collection  of  the 
maritime  laws  of  Wisby  are  compiled  from  three  sources.  The 
first  is  a  Baltic  source,  and  the  earliest  laws  to  be  attributed 
to  that  source  come  from  Lubeck.  The  second  is  a  Flemish 
source  and  represents  a  Flemish  version  of  the  laws  of 
Oleron.  The  third  is  a  Dutch  source,  and  represents  the 
laws  observed  in  the  city  of  Amsterdam.5 

Other  towns  possessed  bodies  of  sea  laws  of  their  own.  We 
possess  the  laws  of  Amalphi  6  and  of  Trani.  It  is  clear  from  7 
the  Domesday  of  Ipswich  that  that  town  possessed  a  cqurt 
in  which  pleas  relating  to  maritime  matters  were  pleaded  from 
tide  to  tide. 8  But  these  three  codes  —  the  laws  of  Oleron, 

1  Black  Book  of  the  Admiralty  iii  xxxv. 
1  Ibid  iii  Ixxiii. 
8  Ibid  iv  xxiii. 

*  Ibid  iv  xxi,  xxii. 

*  Ibid  iv  xxvii,  seqq. 

*  Ibid  ii  23.        T  Ibid  iv  xv,  xvi.        •  Ibid  iv  vii-xy. 


292    //.     FROM    THE    1100'S    TO    THE    1800' 'S 

the  Consolato  del  Mare,  and  the  maritime  laws  of  Wisby, 
became  the  leading  maritime  codes  of  Europe.  In  fact 
these  codes,  "  form  as  it  were  a  continuous  chain  of  maritime 
law,  extending  from  the  easternmost  parts  of  the  Baltic  sea, 
through  the  North  sea,  and  along  the  coast  of  the  Atlantic 
to  the  Straits  of  Gibraltar,  and  thence  to  the  furthest 
eastern  shores  of  the  Mediterranean."  1 

(6)  Commercial  law. 

Similarly  in  mercantile  matters  we  find  that  various  towns 
have  their  codes  of  customs  by  which  mercantile  transactions 
are  governed.  As  we  might  expect,  the  towns  which  pos- 
sessed laws  dealing  with  maritime  matters  were  the  towns 
to  which  some  sort  of  mercantile  laws  were  a  necessity.  Ole- 
ron,2  Barcelona,3  and  Wisby4  all  possessed  such  bodies 
of  law.  In  England  we  have  the  White  Book  of  London,5  the 
Red  Book  of  Bristol/*  and  the  Domesday  of  Ipswich.  *  Just 
as  the  various  seaport  towns  imitated  the  customs  of  some 
one  port,  so  the  various  towns  modelled  their  charters  and 
their  laws  upon  certain  of  the  more  famous  towns  in  Eng- 
land, such  as  London,  Bristol,  Oxford,  or  Winchester.8  In 
the  Carta  Mercatoria  and  the  Statute  of  the  Staple  we  get 
special  codes  of  rules  adapted  to  foreign  merchants.9  The 
body  of  rules  so  used  by  the  chief  trading  towns  of  Europe 
is  known  to  the  Middle  Ages  as  the  Law  Merchant.  It  is, 
in  fact,  the  private  international  law  of  the  period. 

It  is  clear  that  both  the  maritime  and  the  commercial 
law  of  the  Middle  Ages  grew  up  amid  similar  surroundings, 
governed  the  relations  of  persons  engaged  in  similar  pursuits, 
was  enforced  in  similar  tribunals.  It  is  not  therefore  sur- 
prising that,  from  that  time  to  this,  the  relations  between 
them  have  always  been  of  the  closest.10  Even  in  England, 

1  Black  Book  of  the  Admiralty  iv  xxvi,  xxvii.        *  Ibid  ii  254  seqq. 
•Ibid  iii  Ixix-lxxii.  *Ibid  iv  265,  386. 

*  Munimenta  Gildhallae,  R.  S.,  vol.  iii. 

«L.Q.  R.  xvii  246.  'Black  Book  of  the  Admiralty  ii  16-207. 

*  For  a  table  illustrating  this   affiliation  of  mediaeval   boroughs   see 
Gross,  The  Gild  Merchant,  i  App.  E.        » Below. 

1  °  At  this  period  they  are  usually  classed  together.  Select  Pleas  of 
the  Admiralty  (S.  S.)  i  xix,  in  1313  justices  to  settle  piracy  claims  are 
to  proceed  "  secundum  legem  et  consuetudinem  dicti  regni  et  similiter 
legem  mercatoriam."  Ibid  xxii,  in  1320  a  similar  direction  to  arbitrators 
between  England  and  Flanders  in  a  case  of  spoil.  Ibid  xxiv,  complaint 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   293 

where  they  have  come  to  be  applied  in  different  courts,  it 
has  been  impossible  to  ignore  their  close  connection.  Both, 
as  we  have  seen,  have  appeared  to  English  judges  to  be  rather 
a  species  of  jus  gentium  than  the  law  of  a  particular  state. 
In  spite  of  the  efforts  of  the  Courts  of  Common  Law,  the 
attempt  to  separate  them  has  produced  much  inconve- 
nience1 and  has  only  partially  succeeded.  "  It  was,"  says 
Sir  Travers  Twiss,  "  the  practice  of  the  consuls  of  the  sea, 
before  pronouncing  their  decision  to  consult  the  Prudhomes 
of  the  sea  and  the  Prudhomes  of  the  merchants.  ...  In  the 
High  Court  of  Admiralty  of  England  it  is  the  practice  for 
the  judge  to  be  assisted  by  two  of  the  Elder  Brethren  of  the 
Trinity  House  of  Deptford-le-Stroud,  whilst  the  registrar 
of  the  court,  at  a  subsequent  stage  of  the  proceedings,  has 
the  assistance  of  two  merchants."2 

Such,  then,  was  the  nature  of  the  Law  Merchant.  We 
must  now  consider  the  history  of  the  tribunals  which  ad- 
ministered it.  Their  history  will  fall  into  three  periods :  — 
(i)  The  period  when  the  Law  Merchant,  maritime  and  com- 
mercial, is  administered  in  local  courts,  (ii)  The  rise  of  the 
Court  of  Admiralty  and  its  jurisdiction,  (iii)  The  decay  of 
the  special  courts  administering  the  commercial  part  of  the 
Law  Merchant  and  its  absorption  into  the  common  law 
system. 

(i)  The  period  when  the  Law  Merchant,  maritime  and 
commercial,  is  administered  in  local  courts. 

that  a  ship  of  Placentia  had  been  spoiled  by  one  of  Bristol;  the  case 
was  heard  by  a  jury  of  mariners  and  merchants  "prout  de  jure  et 
secundum  legem  mercatoriam  foret  faciendum."  In  the  17th  century 
Malynes,  when  he  wrote  his  Lex  Mercatoria,  found  it  necessary  to  devote 
a  large  part  of  treatise  to  the  sea  laws.  In  the  preface  he  says,  "  And 
even  as  the  roundness  of  the  globe  of  the  world  is  composed  of  the  earth 
and  waters;  so  the  body  of  the  Lex  Mercatoria  is  made  and  framed 
of  the  Merchants  Customs  and  the  Sea  Laws,  which  are  involved  to- 
gether as  the  seas  and  the  earth."  Cp.  ibid  87.  "  For  without  naviga- 
tion commerce  is  of  small  account."  At  p.  303,  when  considering  the 
courts  peculiar  to  merchants,  he  deals  first  with  the  Admiralty  court. 

lln  1833  a  select  committee  recommended  an  extension  of  the  juris- 
diction of  the  Admiralty  so  as  to  enable  it  to  "exercise  concurrent- juris- 
diction in  questions  of  title  to  ships  generally,  and  of  freight,  and  pos- 
sibly of  some  other  mercantile  matters,  with  a  power  of  impannelling 
a  jury  of  merchants,  if  the  judge  think  fit  or  either  of  the  parties  re- 
quire it,"  Williams  and  Bruce,  Admiralty  Practice  (Ed.  1886)  13  n.  k. 

*  Black  Book  of  the  Admiralty  iii  Ixxx. 


294     //.     FROM    THE    1100'S    TO    THE    1800'S 

Up  to  the  reign  of  Edward  III.  the  Law  Merchant  in 
both  its  branches  is  administered  by  local  courts. 

Maritime  Courts. 

The  courts  which  have  jurisdiction  in  maritime  matters 
are  for  the  most  part  the  courts  of  seaport  towns.  The 
admiral  is  not  an  official  who  holds  a  court  with  a  fixed 
jurisdiction.  He  is  an  official  who  rules  a  fleet,  having 
incidentally  certain  disciplinary  powers  over  those  under 
his  command.  These  powers  "  probably  enabled  the  admiral 
to  deal  with  depredations  committed  by  the  ships  immedi- 
ately under  his  command;  but  it  does  not  appear  to  have 
included  a  power  to  hold  a  court  administering  justice  gen- 
erally in  maritime  cases."  1 

In  the  earlier  part  of  the  Middle  Ages  we  meet  with  many 
seaport  towns  which  had,  in  the  language  of  later  law,  an 
Admiralty  jurisdiction.  The  Domesday  of  Ipswich  tells  us 
that,  "  the  pleas  yoven  to  the  lawe  maryne,  that  is  to  wite, 
for  straunge  marynerys  passaunt  and  for  hem  that  abydene 
not  but  her  tyde,  shuldene  ben  pleted  from  tyde  to  tyde."  2 
Padstow  and  Lostwithiel  possessed  similar  courts  which  sat 
at  tide  time  on  the  seashore.  Yarmouth  possessed  a  court 
of  like  nature.3  The  court  at  Newcastle  dates  from  Henry 
I.'s  reign.4  It  would  appear  from  the  Red  Book  of  Bristol 
that  a  court  sitting  at  a  seaport  was  one  of  the  recognised 
tribunals  of  the  Law  Merchant.5  The  Book  itself  contains 
rules  upon  maritime  matters.6  When  the  court  of  Admiralty 
was  established  many  towns,  jealous  probably  of  their  an- 
cient rights,  got  by  royal  charter  exemption  from  its  juris- 
diction.7 Though  their  privileges  were  recognised  by  the 

Select  Pleas  of  the  Admiralty  (S.  S.)  i  xli.  It  was  a  court  "for 
military  action  not  for  civil  jurisdiction,'*  Spelman  (Works,  Ed.  1727), 
Admiralty  Jurisdiction,  221.  The  sheriff  also  had  some  authority  by 
royal  writ  at  this  period.  Cp.  Selden,  Mare  Clausum,  ii  c.  14. 

*  Black  Book  of  the  Admiralty  ii  23. 

3  Select  Pleas  of  the  Admiralty  i  xiii,  xiv. 

4  Stuhbs,  Sel.  Ch.  112.     "  Inter  burgensem  et  mercatorem  si  placitum 
oriatur,  finiatur  ante  tertiam  refluxionem  maris." 

SL.  Q.  R.  xvii  246.  It  is  said  that  the  lex  mercatoria  attaches  to 
markets,  and  markets  are  held  in  five  places  "  in  civitatibus,  nundinis, 
portubus  super  mare,  villis  mercatoriis,  et  burgis."  9  Ibid  249. 

T  Select  Pleas  of  the  Admiralty  (S.  S.)  i  xiv.  15  Rich.  II.  c.  3  recites 
that  the  jurisdiction  of  the  Admiral  prejudices  "many  Lords,  Cities 
and  Boroughs  through  the  realm." 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   295 

legislature,1  they  were  jealously  watched  by  the  crown  and 
by  the  court  of  Admiralty.  In  1570  Elizabeth  found  it 
necessary  to  complain  of  the  encroachments  made  by  the 
mayor's  court  of  the  city  of  London  upon  the  Admiral's 
jurisdiction.2  We  find  that  at  different  periods  in  the  15th 
and  16th  centuries  the  jurisdiction  of  Tynemouth,  Scarbor- 
ough, Chester,  King's  Lynn,  Harwich,  Dartmouth  and  Ches- 
ter^ are  either  called  in  question  by,  or  successfully  asserted 
against,  the  court  of  Admiralty.3  All  these  local  Admiralty 
jurisdictions  were  swept  away  in  1835  by  the  Municipal 
Corporations  Act.4  The  only  local  jurisdiction  left  is  one 
which  is  possibly  older  than  them  all,  the  jurisdiction  of  the 
Cinque  Ports.  "  It  presents  the  type  and  original  of  all  our 
Admiralty  and  maritime  courts." ' 

From  the  earliest  times  the  Cinque  Ports  had  the  right  to  - 
hold  pleas,  and  the  right  to  wreck.  They  were  always  exempt 
from  the  jurisdiction  of  the  Admiralty.  Owing  probably  to 
the  antiquity  of  their  jurisdiction,  this  exception  is  not  ex- 
pressly given  in  their  Charters.  When  in  1856  the  general 
civil  jurisdiction  of  the  Lord  Warden  of  the  Cinque  Ports 
was  abolished,  his  Admiralty  jurisdiction  was  saved.6  In 
1869,  when  Admiralty  jurisdiction  was  given  to  the  new 
county  courts,  it  was  provided  that  appeals  in  Admiralty 
cases  from  the  county  courts  within  the  jurisdiction  of  the 
Lord  Warden  should  lie  to  him.7  Their  jurisdiction  is  not 
touched  by  the  Judicature  Act  of  1873,  and  still  survives.8 

The  Admiralty  jurisdiction,  thus  exercised  by  the  local 
courts,  was  supervised  and  controlled  by  the  crown.  The 
crown  was  for  many  reasons  specially  interested  in  Admiralty 
cases.  Foreign  affairs  were  peculiarly  within  its  province; 
The  Courts  of  Common  Law  had  no  adequate  machinery  for 

»2  Henry  V.  St.  1  c.  6;  32  Henry  VIII.  c.  14;  5  Eliza,  c.  5  §  42;  27 
Eliza,  c.  11. 

8  Select  Pleas  of  the  Admiralty  (S.  S.)  ii  xii,  xiii.  Cf.  Legge  v. 
More,  ibid  i  83  (1539).  8  Ibid  ii  xix-xxi.  4  5,  6  Will.  IV.  e.  76. 

8  Select  Pleas  of  the  Admiralty  (S.  S.)  ii  xxi.  Cp.  Lord  Warden  of 
the  Cinque  Ports  v.  the  King  (1831)  2  Hagg.,  Admir.  438,  443,  444. 

•  18,  19  Viet.  c.  48  §  10.  7  31,  32  Viet.  c.  71  §  33. 

8  46,  47  Viet.  c.  18  §13  (Municipal  Corporations  Act  1883);  57,  58 
Viet.  c.  60  §  571  (Merchant  Shipping  Act  1894).'  The  regular  place 
for  the  sitting  of  the  court  was  the  isle  of  St.  James's  Church,  Dover. 
For  convenience  the  judge  now  often  sits  at  the  Royal  Courts  of  Justice. 


296    //.     FROM    THE    1100'S    TO    THE    1800'S 

supervising  the  actions  or  the  transgressions  of  foreigners. 
Such  matters  frequently  gave  rise  to  diplomatic  questions 
in  the  shape  of  expensive  claims  for  compensation.  In  fact 
we  shall  see  that  it  was  largely  owing  to  the  necessity  the 
crown  was  under  of  protecting  itself  against  such  claims  that 
the  creation  of  the  court  of  Admiralty  was  due. 

In  this  period  the  crown  supervises  the  doings  of  the 
local  courts  in  the  following  ways. 

Writs  are  sometimes  sent  to  the  mayors  and  bailiffs  of 
the  seaport  towns  directing  them  to  proceed.1  If  they  did 
not  obey  the  writ  they  were  attached  for  contempt.  Some- 
times special  commissions  are  issued  to  the  king's  justices 
or  others  to  try  cases  of  spoil  or  piracy.2  It  was  very  often 
impossible  for  a  foreigner,  who  had  been  spoiled  of  his 
goods,  to  get  justice  from  an  English  jury.3  Such  persons 
often  petitioned  the  Council.  The  petition  in  such  cases  was 
often  referred  to  the  Chancellor ; 4  but  it  was  sometimes 
heard  by  the  Council,  and  writs  were  issued  according  to  the 
result  of  the  trial.5  In  1353  we  hear  of  such  a  case  being 
tried  by  the  Admiral  and  the  Council.6  This  is,  as  we  shall 
see,  just  before  the  first  mention  of  the  Admiral's  court. 

1 1315  writ  to  mayor  and  bailiffs  of  Rye  to  inquire  into  a  ship  spoiled 
by  pirates  in  Orwell  haven,  the  goods  of  which  had  been  taken  to  Rye; 
neglect  to  send  the  pirates  before  the  king  as  ordered;  writ  to  the  con- 
stable of  Dover  Castle  to  arrest  the  mayor  and  bailiffs  (Select  Pleas 
of  the  Admiralty  (S.  S.)  i  xx).  1323  writ  to  sheriff  of  Gloucester  to 
arrest  a  ship  with  the  help  of  the  mayor  of  Bristol,  and  to  try  the  case 
in  the  mayor  of  Bristol's  court  (ibid  xxiv).  1328  writ  to  the  sheriff 
of  Southampton  to  arrest  French  goods  (ibid  xxvi).  1352  writ  to  the 
mayor  of  Southampton  to  arrest  certain  pirates  and  bring  them  before 
the  Council  (ibid  xxxix).  1319  Pilk  v.  Venore,  case  removed  from  Bris- 
tol court  into  the  Chancery;  the  Bristol  court  applied  the  law  of  Oleron 
(ibid  ii  xliii). 

2 1308  Edward  II.  issued  a  commission  to  certain  "  auditores "  to 
inquire  of  spoils  alleged  to  have  been  committed  by  Frenchmen  upon 
Englishmen  (Select  Pleas  of  the  Admiralty  (S.  S.)  i  xviii).  1338  com- 
mission to  certain  persons  to  inquire  as  to  ships  of  the  Count  of  Guel- 
dres  which  had  been  spoiled  (ibid  xxvii).  1339  commission  to  Stonore 
and  two  others  to  try  a  case  of  piracy  committed  by  English  upon 
Spanish,  Portuguese,  and  Catalan  merchants  in  Southampton  water 
(ibid  xxix).  'Ibid  xxiii. 

4  Ibid  xxv.  1325  a  petition  by  one  whose  ship  had  been  robbed  at  sea 
by  the  men  of  Yarmouth.  1327  in  a  case  of  piracy  of  English  upon 
Frenchmen. 

•Ibid  xxxviii,  a  case  of  1343;  xxxix  a  case  of  1352;  1347  the  Council 
orders  restitution  of  goods  taken  by  pirates,  and,  in  default,  the  arrest 
of  those  to  whom  the  good  had  come.  6  Ibid  xl. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   297 

The  Courts  of  Common  Law  sometimes,  but  rarely  inter- 
fered in  such  matters.1  They  had  in  fact  no  jurisdiction 
over  contracts  made  or  torts  committed  abroad.2 

With  respect  to  crimes  committed  out  of  the  bodies  of 
counties,  the  question  how  far  the  Common  Law  Courts  had 
jurisdiction  is  perhaps  more  doubtful.  Hale  asserts  that 
they  did  possess  such  jurisdiction  before  1365.  He  cites 
eight  cases  of  the  reigns  of  Edward  I.,  II.,  and  III.3  These 
cases  do  not  however  completely  prove  Hale's  position,  as 
Cockburn,  C.  J.,  points  out  in  Reg.  v.  Keyn*  It  is  not, 
however,  improbable  that,  at  a  period  when  the  court  of 
Admiralty  did  not  exist,  the  ordinary  courts  did  sometimes 
exercise  such  jurisdiction.  Criminal  cases  are  still  tried 
by  a  jury,5  and  in  cases  of  piracy  the  commissioners  are 
sometimes  directed  to  proceed  "  secundum  legem  et  consue- 
tudinem  regni  nostri."  Generally,  however,  the  procedure 
is  "  secundum  legem  mercatoriam,"  or,  "  maritimam." 
The  maritime  law  is  clearly  a  law  apart  from  the  common 
law  and  practically  identified  with  the  law  of  the  mer- 
chants. 

1  It  would  appear  that  in  1296  (case  cited  by  Selden  iii  1895)  the 
Common  Pleas  declined  to  recognise  the  jurisdiction  of  the  Admiral 
and  asserted  that  it  had  general  jurisdiction.  The  court  said  it  could 
try  a  murder  committed  at  sea  as  well  as  on  the  land  when  the  mur- 
derer came  to  land.  The  MS.  from  which  Selden  cites  has  disappeared 
(Select  Pleas  of  the  Admiralty  i  xvii,  xviii).  1322  action  to  recover 
damages  for  spoil  at  sea  in  the  King's  Bench  (ibid  xxiii).  1323  a  case 
before  the  Bristol  court  moved  by  certiorari  into  the  King's  Bench 
(ibid  xxiv). 

1  At  the  end  of  the  14th  century  it  would  appear  that  there  was  no 
remedy  for  breach  of  charter  party  made  abroad,  Copyn  v.  Snoke  (ibid, 
ii  lix).  In  1280  it  was  decided  that  the  Common  Law  Courts  had  no 
jurisdiction  .over  torts  committed  abroad  (ibid  ii  xliii,  xliv). 

3  Hale,  2  P.  C.   12-15. 

4  (1876)    L.  R.   2  Ex  Div.   163-167.     "  It  appears   that  of  these  eight 
cases  four  were  in  the  nature  of  a  civil  remedy,  and,  as  it  would  seem 
were  properly  within  the  jurisdiction  of  the  Court  of   King's   Bench; 
four  were  cases  of  piracy,  which  may  have  been  dealt  with  on  the  prin- 
ciple that  piracy  is  triable  anywhere  and  everywhere.     Moreover  as  to 
two  of  the  latter  cases,  it  is  doubtful  whether  the  offence  was  not  com- 
mitted within  the  body  of  a  country,  and  therefore  triable  at  common 
law." 

8  Ibid  i  xxi,  xxii,  xxiv;    Black  Book  of  the  Admiralty  i  45,  49,  83. 

6  Ibid  i  xvi.  In  1377  a  case  of  piracy  is  tried  at  common  law  "  secun- 
dum legem  et  consuetudinem  regni  ac  legem  maritimam."  There  is  a 
proviso  that  this  is  not  to  be  an  encroachment  on  the  Admiral's  rights, 
ibid  i  xlviii. 


298    //•     FROM    THE    1100'S    TO    THE    1800'S 

Commercial  Courts. 

The  courts  which  administer  the  commercial  law  of  the 
period  necessarily  present  features  very  similar  to  the  courts 
which  administer  the  maritime  law.  The  law  merchant 
applied  both  to  the  domestic  trader  and  to  the  foreign  mer- 
chant.1 Both  formed  in  a  sense  a  separate  class.  But,  as 
we  might  expect,  the  separation  is  far  more  clearly  marked 
in  the  latter  than  in  the  former  case. 

The  courts  which  administer  this  branch  of  the  Law 
Merchant  are  chiefly  the  courts  of  fairs,  the  courts  of  the 
more  important  towns,  and  the  courts  of  the  Staple. 

In  the  fairs  of  the  Middle  Ages  much  of  the  internal  and 
foreign  trade  of  the  country  was  conducted.  The  right  to 
hold  a  fair  meant  the  right  to  hold  a  court  of  pie  powder  for 
the  fair.2  A  statute  of  1477s  recites  that  in  this  court, 
"  it  hath  been  all  times  accustomed,  that  every  person  coming 
to  the  said  fairs,  should  have  lawful  remedy  of  all  manner  of 
contracts,  trespasses,  covenants,  debts,  and  other  deeds  made 
or  done  within  any  of  the  same  fairs,  during  the  time  of  the 
said  fair,  and  within  the  jurisdiction  of  the  same,  and  to  be 
tried  by  the  merchants  being  of  the  same  fair."  Later  cases 
confined  the  jurisdiction  of  the  fair  strictly  within  these 
bounds.*  Sometimes  these  courts  were  held  by  the  mayor  of 


1  The  term  merchant  at  this  period  was  not  confined  to  large  traders. 
It  embraced  all  who  traded.  The  distinction  between  the  craftsman  and 
the  merchant  is  later,  Gross,  Gild  Merchant,  i  107  and  n.  2. 

*  The  style  of  such  court  is,  Curia  Domini  Regis  pedis  pulverisati  tenta 
apud  civitatem  X,  coram  majore  et  duobus  convicibus  secundum  consue- 
tudines  civitatis  a  tempore  cujus  etc.,  ac  sec',  privilegia  et  libertates  con- 
cessa  et  confirmata  (or  if  a  franchise  fair,  coram  A.  B.  senescallo  feriae). 
Bracton  f.  334  a  speaks  of  persons,  qui  celeram  habere  debent  justitiam, 
sicut  sunt  mercatores  quibus  exhibetur  justitia  pepoudrus;  Coke,  4th 
Instit.  272;  Rastell's  Entries  f.  168  b,  169. 

» 17  Ed.  IV.  c.  2  §  3. 

4  Howel  v.  Johns  (1600)  1  Cro.  773.  Error  of  a  judgment  in  the  court 
of  the  fair  of  Gloucester,  in  an  action  on  the  case  for  words.  The  error 
assigned  was  that  the  words  were  spoken  before  the  market  began. 
Judgment  reversed,  "  they  cannot  meddle  with  any  matter  in  that  court, 
but  with  what  happens  in  the  market  the  same  day.  They  also  held  that 
this  was  not  an  action  proper  for  that  court;  for  it  is  only  for  matters 
of  contracts,  and  for  matters  arising  within  the  market,  and  by  occasion 
of  the  market,  as  batteries  or  disturbances  happening  therein.  But  if 
the  words  were  by  occasion  in  the  same  market  it  might  peradventure 
be  otherwise."  Cp.  Goodson  v.  Duffield  (1612)  Cro.  Jac.  313;  Hall  v. 
Pyndar  (1556)  Dyer  132  b,  pi.  80,  and  cases  cited  in  the  margin. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   299 

a  corporate  town.1  Sometimes  they  belonged  to  a  lord. 
Of  the  latter  class  was  the  fair  of  St.  Ives.2  We  can  see  that 
merchants  from  all  parts  of  England,  and  even  from  abroad, 
attended  this  fair.  In  the  pleadings  of  the  court  of  this  fair 
we  have  mention  of  the  communitates  of  Stamford,  Not- 
tingham, Leicester,  Huntingdon,  Godmanchester,  Bury  St. 
Edmunds,  Wiggenhall,  and  Ypres.  These  fairs  were  not 
peculiar  to  England.  "  By  means  of  them  almost  all  foreign 
trade  was  for  centuries  conducted.  In  the  fairs  of  Cham- 
pagne .  .  .  Besan9on  and  Lyons  in  France  .  .  .  Antwerp  in 
the  Low  Countries,  and  not  least  in  the  fairs  of  Winchester 
and  Stourbridge  in  England,  goods  were  bought  -and  sold ; 
orders  were  given  and  taken ;  outstanding  payments  were 
made  there ;  and  there  obligations  to  be  discharged  at  future 
fairs  were  contracted.  To  these  gatherings,  which  lasted  for 
several  days,  flocked  merchants  from  all  parts  of  Europe. 
The  dealings  of  the  merchants  necessitated  the  use  of  simple 
rules;  no  technical  jurisprudence  peculiar  to  any  country 
would  have  been  satisfactory  to  traders  coming  from  many 
different  countries."2  The  customs  of  different  places  may 
have  slightly  varied;4  but  the  law,  in  its  broad  lines,  as  laid 
down  by  the  merchants  in  these  courts,  was  necessarily  of 
the  international  character  which  has  always  been  its  chief 
characteristic. 

The  towns  had  in  many  cases  the  right,  either  by  charter 
or  by  prescription,  to  hold  various  courts,  of  pie  powder  and 
otherwise,  in  which  the  Law  Merchant  was  administered,  in 
addition  to  many  other  kinds  of  jurisdiction,  civil  and 
criminal.  The  Domesday  of  Ipswich  distinguishes  many 
different  kinds  of  pleas.  Those  which  concern  the  Law 
Merchant  are  clearly  distinct  from  the  others.5  The  Red 

1  For  the  curious  right  of  the  Cinque  Ports  to  hold  a  fair  at  Yarmouth 
see  Arch.  Cantiana  xxiii  161-183. 

*  Select  Pleas  in  Manorial  Courts   (S.  S.)   130. 

8  Smith,  Mercantile  Law   (Ed.  1890)   Introd.  Ixix,  Ixx. 

4  The  Carta  Mercatoria  (Munimenta  Gildhallae  (R.  S.)  ii  pt.  i  206,  207) 
implies  this,  "  Et  si  forsan  supra  contractu  hu j  usmodi  contentio  oriatur, 
fiat  inde  probatio  vel  inquisitio,  secundum  usus  et  consuetudines  feri- 
arum  et  villarum  mercatoriariarum  ubi  dictum  contractual  fieri  con- 
tigerit  et  iniri." 

"Black  Book  of  the  Admiralty  (R.  S.)  ii  23.  "The  plees  be  twixe 
straunge  folk  that  man  clepeth  pypoudrus,"  "  The  pleas  in  tyme  of  fayre 
be  twixe  straunge  and  passant,"  "  The  pleas  yoven  to  the  law  maryne." 


300     //.     FROM    THE    1100'S    TO    THE    1800'S 

Book  of  Bristol  describes  the  differences  existing  between 
the  Law  Merchant  and  the  common  law,  and  treats  generally 
of  the  law  and  procedure  of  merchant  courts. l  Similarly  the 
White  Book  of  London  describes  the  special  usages  which 
prevail  where  the  merchants  are  concerned.2  Many  other 
towns  also,  as  we  can  see  from  the  reports,  had  the  right  to 
hold  courts  for  the  merchants.3  Some  of  these  courts  still 
exist.  The  Lord  Mayor's  court  in  London,4  the  Tolzey 
court,  and  a  branch  of  it  sitting  in  time  of  fair  as  a  Pie 
Powder  Court,  at  Bristol,5  the  Liverpool  court  of  passage,6 
are  examples  of  survivals  from  a  time  when  the  Law  Mer- 
chant was-  generally  administered  in  local  courts. 

The  merchants  not  only  had  special  courts  and  a  special 
law,  they  were  also  differentiated  from  the  rest  of  the  com- 
munity by  a  special  organization.  In  the  charters  of  the 
towns  there  is  frequent  mention  of  the  Guild  Merchant.  This 
was  an  association  of  traders  within  the  town,  and,  in  some 
cases,  of  traders  living  outside  its  precincts,  for  the  better 
management  of  trade.7  It  sometimes  arbitrated  upon  mer- 
cantile disputes.8  But  as  a  rule  it  did  not  exercise  a  regular 
jurisdiction.  Its  chief  function  was  that  of  a  trades  union 
of  a  rigidly  protective  character.9  It  was  only  those  who 

1 L.  Q.  R.  xvii  246.  »  Munimenta  Gildhallae  (R.  S.)  iii  f.  191  b. 

•Above.         *Coke,  4th  Instit.  247;    Bl.  Comm.  iii  80. 

« L.  Q.  R.  xvii  237  n.  3. 

'  Regulated  by  56,  57  Viet.  c.  37.  Other  instances  are  the  Derby  Court 
of  Record;  Exeter  Provost  Court;  Kingston-upon-Hull  Court;  Newark 
Court  of  Record;  Northampton  Borough  Court;  Norwich  Guildhall 
Court;  Peterborough  Court  of  Common  Pleas;  Preston  Court  of  Pleas; 
Romsey  Court  of  Pleas;  Southwark  Court  of  Record;  Worcester  City 
Court  of  Pleas. 

7  Gross,  Gild  Merchant,  i  chap.  iii.  "  The  words,  '  so  that  no  one  who 
is  not  of  the  Gild  may  trade  in  the  said  town  except  with  the  consent 
of  the  burgesses,'  which  frequently  accompanied  the  grant  of  a  Gild 
Merchant,  express  the  essence  of  this  institution  "  (p.  43)'. 

"L.  Q.  R.  xvii  238. 

•Gross,  Gild  Merchant,  i  43-50.  As  to  the  distinction  between  Gild 
and  Borough  see  ibid  chap.  v.  This  distinction  tended  to  become  oblit- 
erated in  the  14th  century  (p.  76).  With  other  privileges  that  of  having 
a  Gild  Merchant  helped  on  the  idea  of  municipal  incorporation  (p.  105). 
"The  judicial  authority  of  the  Gild  Merchant  was  at  first  very  limited, 
its  officers  forming  a  tribunal  of  arbitration,  at  which  the  brethren  were 
expected  to  appear  before  carrying  their  quarrels  into  the  ordinary 
courts.  The  functions  of  these  officers  were  inquisitorial  rather  than 
judicial.  But  in  some  places  their  powers  appear  to  have  been  gradually 
enlarged  during  the  13th  century  so  as  to  embrace  jurisdiction  in  pleas 
relating  to  trade"  (p.  65). 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   301 

belonged  to  the  Guild  Merchant  who  could  trade  freely  within 
the  town.  Its  conduct  was  sometimes  so  oppressive  that  trade 
was  driven  from  the  town. l  In  fact  all  the  various  privileges, 
jurisdictional  and  administrative,  which  the  towns  possessed 
could  be,  and  often  were  used  in  a  manner  adverse  to  the 
commercial  interests  of  the  country.  The  foreign  merchant 
was  hampered  at  every  turn  by  the  privileges  of  the  chartered 
towns.  They  were  averse  to  allowing  him  any  privileges 
except  those  which  they  had  specially  bargained  to  give  to 
him.2  "  The  Great  Charter  provides  that  merchants  may 
freely  enter  and  dwell  in  and  leave  the  realm ;  but  the  same 
Great  Charter  confirms  all  the  ancient  liberties  and  customs 
of  London  and  the  other  boroughs,  and  thus  takes  away  with 
one  hand  what  it  gives  with  the  other.  The  burghers  have 
a  very  strong  opinion  that  their  liberties  and  customs  are 
infringed  if  a  foreign  merchant  dwells  within  their  walls  for 
more  than  forty  days,  if  he  hires  a  house,  if  he  fails  to  take 
up  his  abode  with  some  responsible  burgher,  if  he  sells  in 
secret,  if  he  sells  to  foreigners,  if  he  sells  in  detail."* 

The  crown,  on  the  other  hand,  was  for  many  reasons 
interested  in  supporting  the  foreign  merchant.  The  crown 
was  able  to  take  a  broader  view  of  the  commercial  interests  of 
the  country  than  any  set  of  burghers.  Its  intelligence  wa& 
also  quickened  by  the  fact  that  it  was  easier  to  negotiate  a 
supply  from  the  alien  merchant  in  return  for  protection,  than 
to  deal  with  a  Parliament.4  For  these  reasons  the  needs  of 
the  crown  gave  to  the  alien  merchant  a  defined  position  —  in 
some  respects  superior  to  that  of  the  native  merchant  —  and 
the  protection  of  a  separate  set  of  courts. 

In  1303  the  Carta  Mercatoria5  gave  to  certain  foreign 
merchants,  in  return  for  certain  customs  duties,  exemption 
from  certain  municipal  dues,  freedom  to  deal  wholesale  in 
all  cities  and  towns,  power  to  export  their  merchandize,  and 
liberty  to  dwell  where  they  pleased.  They  were  promised 
speedy  justice  "  secundum  legem  mercatoriam "  from  the 

1  Gross,  Gild  Merchant,  i  52  and  Statutes  there  cited. 
1  For  specimens  of  such  bargains  by  London  with  the  merchants  of 
Amiens,  Corbeil,  and  Nesle  see  Munimenta  Gildhallae  (R.  S.)  iii  164-175. 
8  P.  and  M.  i  447,  448. 
4  Stubbs,  C.  H.  ii  170,  208-210,  572. 
6  Munimenta  Gildhallae  (R.  S.)  ii  pt.  i  205-211. 


302    //.     FROM    THE    1100'S   TO    THE    1800'S 

officials  "  feriarum,  civitatum,  burgorum,  et  villarum  merca- 
toriariarum ;  "  and  any  misdoings  of  these  officials  were  to  be 
punished.  If  the  mayor  and  sheriffs  of  London  did  not  hold 
their  court  from  day  to  day  another  judge  was  to  be  substi- 
tuted for  them.  In  all  pleas,  except  those  of  a  capital  nature, 
half  the  jury  was  to  consist  of  foreign  merchants.  No  future 
grant  of  liberties  to  any  town  was  to  derogate  from  the  rights 
conferred  upon  the  foreign  merchants. 

The  growth  of  the  powers  of  Parliament  in  Edward  III.'s 
reign  gradually  prevented  the  crown  from  obtaining  sup- 
plies by  separate  negotiations  with  the  alien  merchants.1 
But  in  his  reign  (1353)2  similar  privileges  and  a  larger 
measure  of  protection  was  secured  to  them  by  the  Statute 
of  the  Staple. 

With  a  view  to  the  better  organization  of  foreign  trade 
and  the  more  convenient  collection  of  the  customs,  certain 
towns,  known  as  the  Staple  Towns,  were  set  apart. 3  It  was 
only  in  those  towns  that  dealings  could  take  place  in  the 
more  important  articles  of  commerce,  such  as  wool,  wool- 
fells,  leather,  lead,  and  tin.  Eleven  such  towns  were  named 
for  England,  one  for  Wales,  and  four  for  Ireland.4  In  each 
of  these  towns  special  courts  were  provided  for  the  merchants 
who  resorted  thither.  A  mayor  and  two  constables  were  to 
be  chosen  annually  to  hold  the  court  of  the  Staple;  and  the 
authorities  of  the  town  in  which  the  Staple  was  held  were 
ordered  to  be  attendant  upon  them.5  They  were  to  apply 
the  Law  Merchant,  and  not  the  common  law.  All  manner  of 
pleas  concerning  debt,  covenant,  and  trespass  fell  within  their 
jurisdiction.  The  jurisdiction  of  the  king's  courts  was 
excluded  except  in  cases  touching  freehold  or  felony.6  The 

1  Stubbs,  C.  H.,  ii  576.  In  1362  and  1371  it  was  enacted  that  the  mer- 
chants should  not  set  any  subsidy  on  wool  without  the  consent  of  Parlia- 
ment. 

•  27  Ed.  III.  St.  2. 

•The  Staple  system  dates  from  Edward  I.'s  reign.  After-  several 
changes  it  was  consolidated  by  this  statute  (Stubbs,  C.  H.  ii  447,  448). 
After  the  statute  changes  were  made  in  the  places  where  the  Staple 
was  held,  Gross,  Gild  Merchant,  i  141-143.  To  be  a  Staple  town  was 
a  privilege  highly  prized;  for  as  Coke  says  (4th  Instit.  238)  "riches 
followed  •  the  Staple." 

«27  Ed.  III.  St.  2  c.  1.  •  Caps  viii  and  xxi. 

•  27  Ed.  III.  St.  2  c.  v,  vi,  viii,  and  xxi. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   303 

mayor  and  constables  had  the  assistance  of  two  alien  mer- 
chants, one  of  whom  was  chosen  from  the  merchants  who 
came  from  the  north,  the  other  from  the  merchants  who  came 
from  the  south.1  Provision  was  made  for  the  trial  of  cases 
in  which  aliens  were  concerned  by  a  mixed  jury,  and  for  an 
appeal  in  cases  of  difficulty  to  the  Chancellor  and  the  Coun- 
cil.2 A  speedy  means  was  provided  for  the  recovery  of  goods 
of  which  merchants  had  been  robbed  at  sea,  or  which  had  been 
cast  away  and  thrown  up  on  the  shore.8  Merchants  going 
and  returning  to  the  Staple  towns  were  protected  against 
purveyance.4  They  were  promised  lodgings  in  the  towns  at 
a  reasonable  rent.5  They  were  taken  into  the  king's  special 
protection.6  These  privileges  are  specially  stated  to  be 
granted  notwithstanding  any  privilege,  franchise,  or  exemp- 
tion granted  to  any  towns  or  individuals.7 

All  these  courts  administered,  and,  by  administering,  helped 
to  create,  the  Law  Merchant.  With  the  merchant,  his  courts, 
and  his  law  the  common  law  had  little  concern.  He  is  pro- 
tected by  his  special  courts  and  can,  in  the  last  resort,  appeal 
to  the  Chancellor  and  the  Council.8  The  law  is  a  customary 
law  known  to  the  merchants  who  can,  if  need  be,  inform  the 
king's  courts  of  its  contents.9  Fleta  notices  that  it  is  a 
peculiar  law.10  A  statute  was  needed  to  abrogate  the  rule  of 
this  law  that  one  townsman  is  liable,  as  a  kind  of  surety,  for 
the  debt  of  his  fellow  townsman.11  The  rule  that  if  a  debtor 
could  pay,  money  in  the  hands  of  his  debtor  could  be 
attached,  was  common  to  many  towns.12  The  statute  mer- 

*c.  xxiv. 

*c.  viii  and  xxiv. 

*c.  xiii. 

*c.  iv. 

8  c.  xvi.          •  c.  xx.  »  c.  xxviii.          8  Above  306. 

9  In  Edward  II.'s  reign  a  dispute  on  a  question  of  law  arising  in  the 
fair  of  St.  Ives  was  brought  into  the  King's  Bench.     Twelve  merchants 
from  London,  Winchester,  Lincoln,  and   Northampton  were  summoned 
to  give  evidence  as  to  the  law,  Plac.  Abbrev.  321   (cited  Select  Pleas  in 
Manorial  Courts  (S.  S.)  132). 

10  II.  58.  5;    II.  61.  2. 

11  3  Ed.  I.  c.  23;    2d  Instit.  204.    For  a  case  of  34  Ed.  I.  illustrating 
this  rule  as  applied  to  Foreign  Merchants  see  Hale,  2  P.  C.  13  n.  a. 

tfl.  e.  Foreign  Attachment.  Munimenta  Gildhallae  (R.  S.)  Hi  41.  Cp. 
Tross  v.  Michell,  Cro.  Eliza.  172;  Paramore  v.  Veral,  2  Anderson  151; 
Malynes,  Lex  Mercatoria,  290,  291 ;  Cox  v.  Mayor  of  London,  L.  R.  2  H. 
of  L.  239. 


304    //.     FROM    THE    1100'S    TO    THE    1800'S 

chant  and  the  statute  staple  gave  to  English  and  foreign 
merchants  a  right  of  recourse  against  their  debtor's  land.1 
The  common  law  as  yet  knows  but  little  of  these  rules.  A 
writing  obligatory  payable  to  bearer  is  known  among  the 
.  merchants  as  early  as  the  13th  century.  The  first  English 
case  upon  a  bill  of  exchange  in  the  Common  Law  Courts  is 
of  the  year  1603.2 

/  In  this  period,  as  we  have  said,  the  merchant  courts  and 
the  merchant  law  are  so  closely  connected  with  the  mari- 
time courts  and  maritime  law  that  we  may  regard  them  as 
branches  of  the  same  Law  Merchant.  In  the  middle  of  the 
14th  century  the  rise  of  the  court  of  Admiralty  causes  a 
cleavage  between  these  two  branches  of  the  Law  Merchant. 
The  cleavage  is  widened  by  the  action  of  the  Common  Law 
Courts.  Their  jealousy  confines  the  court  of  Admiralty 
rigidly  to  maritime  causes,  and  leads  them  to  appropriate 
to  themselves  jurisdiction  over  commercial  causes.  In  the 
end  they  assimilate  what  they  have  appropriated,  and  con- 
struct our  system  of  mercantile  law. 

(ii)  The  rise  of  the  Court  of  Admiralty  and  its  Juris- 
diction. 

(a)   The  rise  of  the  Court  of  Admiralty. 

The  earliest  mention  of  the  term  Admiral  is  in  a  Gascon 
Roll  of  1295,  in  which  Berardo  de  Sestars  is  appointed 
Admiral  of  the  Baion  fleet.3  There  are  similar  mentions  of 
Admirals  in  these  Rolls  in  1296  and  1297.  In  1300  Gervase 
Alard  is  appointed  Admiral  of  the  Cinque  Ports;  and  this 
appears  to  be  the  earliest  use  of  the  title  in  England.  "  It 
would  appear  that  the  title  of  Admiral,  originating  probably 
in  the  East,  and  afterwards  adopted  by  the  Genoese  and 
other  navies  of  the  Mediterranean,  came  by  way  of  Gascony 
to  England,  and  was  there  adopted  about  the  beginning  of 
the  14th  century."4 

1  11  Ed.  I.  (Statute  of  Acton  Burnell)  ;  13  Ed.  I.  St.  3;  27  Ed.  III. 
St.  2  c.  9. 

*  Martin  v.  Boure,  Cro.  Jac.  6-8. 

8  Select  Pleas  of  the  Admiralty  (S.  S.)  i  xii.  The  Black  Book  of  the 
Admiralty  (i  56,  72)  contains  references  to  an  Admiralty  court  in  the 
reigns  of  Henry  I.  and  John.  These  are  apocryphal  tales  of  the  14th 
century,  Select  Pleas  of  the  Admiralty  i  xi. 

*  Ibid  xii. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   305 

We  have  seen  that  in  the  earlier  part  of  the  14th  century 
the  Admiral  did  not  possess  any  jurisdiction  except  a  disci- 
plinary jurisdiction  over  the  fleet  under  his  command.1  He 
does  get  such  jurisdiction  about  the  middle  of  the  14th  cen- 
tury, owing  to  the  diplomatic  difficulties  in  which  the  king 
found  himself  involved,  from  the  want  of  some  efficient 
authority  to  coerce  the  marauding  and  piratical  propensities 
of  his  subjects. 

It  appears  from  the  documents  contained  in  the  record 
known  as  the  "  Fasciculus  de  Superioritate  Maris  "  that  the 
kings  of  England  had  been  constantly  negotiating  with  for- 
eign countries  —  more  especially  with  France  and  Flanders 
—  as  to  claims  in  respect  of  piracies  committed  by  English 
subjects.2  From  1293  to  1337  attempts  had  been  made  at 
arbitration.  In  1337  Edward  had  made  payments  out  of  his 
own  pocket  to  the  Flemings,  the  Genoese,  and  the  Venetians. 
The  claims  of  the  French  were  put  an  end  to  by  war.  In 
1339  a  commission  was  sitting  to  consider  the  piracy  claims 
made  by  Flanders.  It  may  be  that  the  resolution  to  erect  a 
court  of  Admiralty  was  the  result  of  recommendations  made 
by  that  commission.  At  any  rate  the  battle  of  Sluys  (1340) 
gave  to  England  that  command  of  the  sea,  which  had  been 
already  claimed  in  the  13th  century,  and  so  rendered  the 
erection  of  such  a  court  the  more  possible.  "  It  is  not  unrea- 
sonable to  suppose  that  after  the  battle  of  Sluys  Edward  III., 
acting  upon  the  advice  of  the  commissioners  of  1339,  extended 
the  jurisdiction  of  the  Admiral,  which  had  up  to  that  date 
been  mainly  disciplinary  and  administrative,  so  as  to  enable 

1  Above  304;    Lambard,   Archeion    (Ed.   1635)   49,  50.     The  court  of 
Admiralty  for  some  time  exercised  a  jurisdiction  over  the  navy,   and 
merchant  ships  in  time  of  war.    The  last  remnant  of  it  was  suits  against 
merchantmen   for  carrying  naval  flags,  Encyclopaedia  Britannica   (10th 
Ed.)   Tit.  Admiralty. 

2  The  documents  contained  in  the  Fasciculus  are  described  in  Select 
Pleas  of  the  Admiralty  i  xxx-xxxiv.     It  contains  (1)  the  case  of  certain 
English  merchants  in  respect  of  depredations  committed  between   1297 
and  1304.    It  claims  for  England  the  sovereignty  of  the  sea  of  England. 
It  is   printed  by   Coke,  4th   Instit.   142-144.      (2)  The   appointment   of 
commissioners  to  advise  as  to  French  Piracy  claims;    partially  printed 
by  Coke,  4th  Instit.  144.     (3)    A  treaty  made  by  Ed.  I.  with  Count  Guy 
of  Flanders   1297.      (4)     A   document   addressed   to   commissioners   ap- 
pointed to  deal  with  piracy  claims  by  Flanders;  partly  printed  by  Coke, 
4th  Inst.  144. 


306    //.     FROM    THE    1100'S    TO    THE    1800'S 

him  to  hold  an  independent  court  and  administer  complete 
justice  in  piracy  and  other  maritime  cases."  We  have  seen 
that  the  older  methods  of  administering  justice  in  such  cases 
had  been  found  to  be  very  unsatisfactory.  In  1353  a  case 
was  heard  before  the  Admiral  and  the  Council.2  iln  1357 
there  is  the  earliest  distinct  reference  to  a  court  of  Admi- 
ralty.3 In  1360  John  Pavely  is  appointed  "  capitaneus  et 
ductor'"  of  the  fleet,  with  powers,  not  only  disciplinary,  but 
also  judicial.4  In  1361  the  commission  to  Sir  Robert  Herle 
confers  upon  him  similar  powers,  and  gives  him  power  to 
exercise  them  by  a  deputy.6  This  power  was  probably 
inserted  in  order  to  provide  a  judge  for  the  new  court.  There 
were  at  first  several  Admirals  and  several  courts.  From  the 
early  15th  century  there  is  one  Lord  High  Admiral,  and  one 
court  of  Admiralty.  In  1482  we  have  an  actual  patent  of 
the  judge  of  the  court.6 

The  earliest  parts  of  the  Black  Books  of  the  Admiralty, 
which  refer  to  the  office  and  the  court  of  the  Admiral,  prob- 
ably date  from  the  period  between  1332  and  1357.7  It  is 
clear  that  the  jurisdiction  of  the  court  is  as  yet  new.  There 
is  an  article  expressly  directed  against  the  withdrawal  of 
cases  from  the  court.8  In  1361  a  commission  of  oyer  and 
terminer  was  recalled  on  the  ground  that  the  matter  fell 
within  the  jurisdiction  of  the  Admiral's  court.9  In  1364  a 
writ  of  supersedeas  issued  to  the  judges  on  the  ground  that 
the  Admiral  had  already  tried  the  case.10  In  1375  the  in- 

1  Select  Pleas  of  the  Admiralty  i  xxxv,  xxxvi.  *  Ibid  xl. 

•  Ibid  xli,  xlii.     The  King  of  Portugal  had  made  a  claim  on  behalf 
of  a  Portuguese  subject  in  respect  of  goods  taken  by  an  Englishman 
from  a  French  vessel.    Edward  III.  says  that  the  Admiral  had  adjudged 
them  to  belong  to  the  English  captor. 

*  "  Querelas  omnium  et  singulorum  armatae  praedictae  audiendi  et  de- 
linquentes    incarcerandi,   castigandi,   et   puniendi,   et   plenam   justitiam, 
ac  omnia  alia  et  singula  quae  ad  hujusmodi  capitaneum  et  ductorem 
pertinent,  et  pro  bono  regimine  hominum  praedictorum  necessaria  fuerint 
faciendi,  prout  de  jure  et  secundum  legem  maritimam  fuerit  faciendum" 
(ibid  xlii).  '  Ibid  xlii,  xliii. 

*  Select  Pleas  of  the  Admiralty  i  Iv.     It  empowers  him,  "  ad  cogno- 
scendum  procedendum  et  statuendum  de  et  super  querelis  causis  et  nego- 
tiis  omnium  et  singulorum  de  hiis  quae  ad  curiam  principalem  Admiral- 
litatis  nostrae  pertinent." 

f  Parts  A,  B,  and  C.    See  Black  Book  i  xxviii,  xxix. 
•Ibid  i  69. 

•  Select  Pleas  of  the  Admiralty  i  xlv. 
10  Ibid. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   307 

quisition  of  Queenborough  was  held  in  order  to  ascertain 
certain  points  of  maritime  law. 1  We  shall  see  that  the  new 
court  aroused  the  suspicions  of  Parliament  and  that  its  juris- 
diction was  limited  by  statute.  2  But  the  part  of  the  Black 
Book  dealing  with  the  procedure  and  practice  of  the  court 
(which  dates  from  the  15th  century)  shows  us  that  its  juris- 
diction is  becoming  settled.3 

Under  Henry  VIII.  the  court  of  Admiralty  considerably 
extended  and  settled  its  jurisdiction.  In  that  reign  much 
attention  was  paid  to  naval  matters.  Trinity  House  was 
incorporated  in  1516.  Deptford  dockyard  was  constructed 
at  about  the  same  period.  The  records  of  the  court  began 
in  1524.4  It  was  settled  in  1585  that  the  judge  of  the  court 
of  Admiralty,  though  a  deputy  of  the  Admiral,  did  not  cease 
to  be  judge  during  a  vacancy  of  the  office  of  Admiral.5  The 
criminal  jurisdiction  of  the  court  was  extended;  and  just  as 
the  crown  had  asserted  its  jurisdiction  in  ecclesiastical  mat- 
ters, so  it  asserted  an  increased  jurisdiction,  through  the 
court  of  Admiralty  and  the  Council,  in  maritime  and  com- 
mercial causes.  The  Council  records  show  how  close  was  the 
connexion  between  the  Council  and  the  Admiralty.  6 

During  the  Tudor  period  the  court  sat  at  Orton  Key 
near  London  Bridge.7  Later  it  sat,  like  the  Ecclesiastical 
Courts,  at  Doctors'  Commons.8  We  shall  see  that  the  deter- 
mined attack  of  the  Common  Law  Courts  in  the  17th  century 
left  the  court  with  but  a  small  part  of  the  jurisdiction  which 
it  had  asserted  under  the  Tudors,  and  denied  it  the  status, 
which  it  had  formerly  possessed,  of  a  court  of  record.9 

Black  Book  of  the  Admiralty  i  132  seqq. 

Below. 

i  178-220;    246-280;    345-394. 

Select  Pleas  of  the  Admiralty  i  Ivii. 

Ibid  ii  xii. 

Dasent  i  154,  155;  iii  149,  467,  469;  vii  xviii;  xiv  xxviii;  xx  xiv-xvi; 
xx  v  196,  356,  385-393,  403-405. 

Select  Pleas  of  the  Admiralty  i  Ixxix;    Bl.  Comm.  iii  69. 

In  fact  the  judge  of  the  court  of  Admiralty  afid  the  Dean  of  the 
Arches  were  often  the  same  person  (Anson,  the  Crown,  417).  3,  4  Viet, 
c.  65  §  1  provided  that  the  Dean  might  sit  for  the  judge  of  the  Admi- 
ralty court. 

•  Select  Pleas  of  the  Admiralty  i  xlv.  A  writ  of  supersedeas,  issued 
in  1364,  implies  that  it  is  a  court  of  record.  The  contrary  was  stated, 
Coke,  4th  Instit.  135;  cp.  Sparks  v.  Martyn  (1668)  1  Ventris  1. 


308    //.     FROM    THE    1100'S    TO    THE    1800'S 

Statutes  of  this  century  restored  to  the  court  of  Admiralty 
some  parts  of  the  jurisdiction  of  which  the  Common  Law 
Courts  had  deprived  it.  They  restored  also  its  status  of  a 
court  of  record,  and  gave  to  the  judge  of  the  Admiralty  many 
of  the  powers  possessed  by  the  judges  of  the  superior  Courts 
of  Common  Law.1  • 

Appeals  from  the  court  of  Admiralty  lay  originally  to 
the  king  in  Chancery.  This  is  clear  from  a  statute  of  1533.2 
The  king  on  each  occasion  appointed  judices  delegati  to  hear 
the  appeal.  In  the  Tudor  period  these  Delegates  were  ci- 
vilians. In  later  times  a  judge  of  one  of  the  Common  Law 
Courts  was  associated  with  them.  In  1563  it  was  enacted 
that  their  decision  should  be  final. 3  We  get  the  records  of  the 
Court  of  Delegates  from  the  beginning  of  the  17th  century. 
We  have  seen  that  in  1832  the  jurisdiction  of  the  Delegates 
was  transferred  to  the  Council,  and  that  in  1833  the  Judicial 
Committee  of  the  Council  was  formed  to  hear  such  appeals.4 

(6)   The  jurisdiction  of  the  Court  of  Admiralty. 

In  the  14th  and  15th  centuries  the  jurisdiction  of  the 
Admiralty  is  somewhat  wide  and  vague.  It  comprises  the 
ordinary  criminal  and  civil  jurisdiction  of  later  days,5  the 
Prize  jurisdiction,6  and  the  jurisdiction  over  wreck,  and  the 
other  droita  of  the  crown  or  the  Admiral."  The  procedure 
of  the  court  was  becoming  fixed  upon  the  models  rather  of 
the  civil  than  of  the  common  law.  8  Its  jurisdiction  was  be- 
ginning to  encroach  upon  the  rights  of  those  seaport  towns 
which  possessed  Admiralty  jurisdiction.9  For  these  reasons 
the  court  aroused  a  Parliamentary  opposition  similar  in  kind 

1 24  Viet.  c.  10  §§  14,  17,  23,  24;   below. 

*  25  Henry  viii  c.  19  §  4.    For  earlier  commissions  to  hear  appeals  see 
Select  Pleas  of  the  Admiralty  ii  lix-lxii. 

*  8  Eliza,  c.  5.    This  was  not  necessarily  so  before,  Select  Pleas  of  the 
Admiralty  i.  18-20.  Above. 

Select  Pleas  of  the  Admiralty  i  xlvi-liv. 

Ibid  xli,  xlii;    Rhymer,  Foedera,  vi  14,  15. 

Ibid  xliv,  xlv;   ibid  ii  xxv,  xxvi. 

Black  Book  of  the  Admiralty  (R.  S.)  i  178-220. 

R.  P.  iii  322  (1»  Rich.  II.  n.*49)  the  towns  of  Bristol,  Bridgewater, 
Exeter,  Barnstaple  and  Wells  complain  of  the  encroachments,  errors,  and 
delays  of  the  court.  Appeals,  they  say,  have  been  pending  3  years  and 
more,  "  pur  diverse  delaies  de  la  ley  de  Civill,  et  subtill  ymagination  de 
les  parties  pleintiffs."  Cf.  Sampson  v.  Curteys  (Select  Pleas  of  the 
Admiralty  i  1)  and  Gernesey  v.  Henton  (ibid  17)  which  bear  out  the 
statements  in  the  petition. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   309 

to  that  aroused  by  the  jurisdiction  of  the  Council.  The  result 
of  this  opposition  was  seen  in  two  statutes  of  Richard  II.'s 
reign  which  defined  the  jurisdiction  of  the  Admiralty.  13 
Richard  II.  St.  1  c.  5  recites  that  "  a  great  and  common 
clamour  and  complaint  hath  been  often  times  made  before  this 
time,  and  yet  is,  for  that  the  admirals  and  their  deputies  hold 
their  sessions  within  divers  places  of  this  realm,  as  well  within 
franchise  as  without,  accroaching  to  them  greater  authority 
than  belongeth  to  their  office."  It  enacts  that,  "  the  admi- 
rals and  their  deputies  shall  not  meddle  from  henceforth  with 
the  sea,  as  it  hath  been  used  in  the  time  of  King  Edward, 
grandfather  of  our  Lord  the  King  that  now  is."  15  Richard 
II.  c.  3  enacts  more  specifically,  "  that  of  all  manner  of  con- 
tracts, pleas,  and  quarrels,  and  all  other  things  rising  within 
the  bodies  of  the  counties  as  well  by  land  as  by  water,  and  also 
of  wreck  of  the  sea,  the  Admiral's  court  shall  have  no  manner 
of  cognizance,  power,  nor  jurisdiction."  But,  "  nevertheless, 
of  the  death  of  a  man,  and  of  a  mayhem  done  in  great  ships, 
being  and  hovering  in  the  main  stream  of  great  rivers,  only 
beneath  the  bridges  of  the  same  rivers  nigh  to  the  sea,  and  in 
none  other  places  of  the  same  rivers,  the  Admiral  shall  have 
cognisance."  In  view  of  further  petitions  as  to  the  en- 
croachments of  the  Admiral's  court,  it  was  enacted  in  1400 
that  those  sued  wrongfully  in  that  court  should  have  a  right 
of  action  for  double  damages.2  Petitions  were  still  directed 
against  the  court  and  its  procedure.3  But  these  statutes 
effected  some  settlement  of  the  court's  jurisdiction;  and  the 
Courts  of  Common  Law  maintained  their  observance  by  the 
issue  of  writs  of  supersedeas,  certiorari  or  prohibition.4 

We  have  seen  that  the  reign  of  Henry  VIII.  witnessed  a 
revival  of  interest  in  the  navy  and  an  increased  activity  in 

1  The  statute  also  (§  4)  recognises  the  disciplinary  powers  of  the 
Admiral. 

1  2  Henry  IV.  c.  11. 

8  R.  P.  iii  498  (4  Hy.  IV.  n.  47),  the  prayer  is  for  the  enforcement  of 
remedies  against  the  admirals  and  their  deputies,  "  et  auxi  que  les  ditz 
Admiralles  usent  lour  Leies  tant  soulement  par  la  Ley  de  Oleron  et 
anxiens  Leyes  de  la  Meer,  et  par  la  Leye  d'Engleterre,  et  nemye  par 
Custume,  ne  par  nulle  autre  manere;"  R.  P.  iii  642  (11  Hy.  IV.  n.  61), 
the  prayer  is  that  the  justices  of  the  peace  may  have  power  to  enquire 
into  the  doings  of  the  Adimrals  and  their  agents. 

«Coke,  4th  Instit.  137,  138;    Select  Pleas  of  the  Admiralty  ii  xli. 


310    //.     FROM    THE    UOO'S   TO    THE    1800'S 

the  court  of  Admiralty.  A  statute  of  1540 1  gave  to  the 
Admiral  a  jurisdiction  in  matters  of  freight  and  damage  to 
cargo.  The  patents  of  Henry  VIII.'s  admirals  not  only  omit 
the  proviso  to  be  found  in  earlier  patents,  confining  their 
jurisdiction  within  the  limits  marked  out  by  the  statutes  of 
Richard  II.'s  reign,  they  also  insert  a  non  obstante  clause 
dispensing  with  those  statutes. 2  We  begin  to  be  able  to  clas- 
sify the  jurisdiction  of  the  court  under  the  following  heads :  — 

(1)  Ordinary   or   "Instance"   Jurisdiction.      This   com- 
prises — 

(a)   Criminal  Jurisdiction. 
(6)   Civil  Jurisdiction. 
(c)   Admiralty  Droits. 

(2)  Prize  Jurisdiction. 

(1)   Ordinary  or  Instance  Jurisdiction. 

(a)   Criminal  Jurisdiction. 

We  have  seen  that  after  1363  the  Admiral's  criminal  juris- 
diction was  recognised  as  exclusive  on  the  high  sea.8  This 
exclusive  jurisdiction  could  be  exercised  over  British  subjects, 
over  the  crew  of  a  British  ship  whether  subjects  or  not,  over 
any  one  in  cases  of  piracy  at  common  law.4  It  could  be  exer- 
cised over  no  other  persons.5  The  act  of  Richard  II.  recog- 
nised also  a  jurisdiction  in  cases  of  homicide  and  mayhem 
committed  in  ships  below  the  bridges.6  This  jurisdiction  was, 

1  32  Henry  VIII.  c.  14. 

*  The  patent  of  Henry  Duke  of  Richmond   (1525)    gives  him  power 
"  audiendi   et  terminandi   querelas   omnium   contractuum  inter  dominos 
proprietarios  navium  ac  mercatores  seu  alios  quoscunque  cum  eisdem 
dominis  ac  navium  ceterorumque  vasorum  proprietariis  pro  aliquo  per 
mare  vel  ultra  mare  expediendo  contractuum  omnium  et  singulorum  con- 
tractuum ultra  mare  proficiendorum  vel  ultra  mare  contractuum  et  in 
Anglia  et  ceterorum  omnium  quae  ad  officium  Admiralli  tangunt.  .  .  . 
Aliquibus   statutis,  actubus,  ordinationibus,   sive  restrictionibus   in  con- 
trarium  actis  editis  ordinatis  sive  provisis,  non  obstantibus,"  Select  Pleas 
of  the  Admiralty  i  Iviii.     The  later  commissions  are  very  similar;    but 
they  omit  the  non  obstante  clause. 

M3  Rich.  II.  St.  1  c.  5;    15  Rich.  II.  c.  3. 

*  Stephen,  H.  C.  L.  ii  27-29.     In  cases  of  piracy  by  statute,  jurisdic- 
tion only  exists  over  British  subjects. 

•  R.  v.  Keyn  (1877)  2  Ex  Div.  63.    The  effect  of  the  decision  was  over- 
ruled by  the  Territorial  Waters  Act   (41,  42  Viet.  c.  73).     The  Act  de- 
clares that  offences  committed  by  anyone  within  the  territorial  waters 
of  the  crown,  i.  e.  on  the  sea  to  such  a  distance  as  is  necessary  for  the 
defence  of  the  dominions  of  the  crown,  are  within  the  jurisdiction  of 
the  Admiral. 

•  15  Rich.  II.  c.  3. 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   311 

up  to  low  water  mark,  concurrent  with  that  possessed  by  the 
Courts  of  Common  Law.1 

We  have  seen  that  the  procedure  in  the  Admiral's  court 
had  come  to  be  modelled  on  the  procedure  of  the  civil  law. 
The  early  precedents  for  trial  by  jury  were  not  followed.2 
Trial  by  witnesses  took  its  place.  In  1536  dissatisfaction 
with  this  method  of  trial  produced  a  statute,  the  ultimate 
effect  of  which  was  to  transfer  to  the  Courts  of  Common  Law 
the  criminal  jurisdiction  of  the  Admiralty.3 

The  statute  recites  that  those  who  have  committed  crimes 
upon  the  sea,  "  many  times  escaped  unpunished  because  the 
trial  of  their  offences  hath  heretofore  been  ordered  .  .  .  be- 
fore the  Admiral  .  .  .  after  the  course  of  the  civil  laws ;  the 
nature  whereof  is,  that  before  any  judgment  of  death  can  be 
given  against  the  offenders,  either  they  must  plainly  confess 
their  offences  (which  they  will  never  do  without  torture  or 
pains)  or  else  their  offences  be  so  plainly  and  directly  proved 
by  witness  indifferent,  such  as  saw  their  offences  committed, 
which  cannot  be  gotten  but  by  chance  at  few  times,  because 
such  offenders  commit  their  offences  upon  the  sea,  and  at 
many  times  murder  and  kill  such  persons  being  in  the  ship 
or  boat  where  they  commit  their  offences,  which  should  wit- 
ness against  them  in  that  behalf;  and  also  such  as  should 
bear  witness  be  commonly  mariners  and  ship  men,  which,  be- 
cause of  their  often  voyages  and  passages  in  the  seas,  depart 
without  .long  tarrying."  It  provides  that  treasons,  felonies, 
robberies,  murders  and  confederacies,  committed  in  any  place 
where  the  Admiral  has  jurisdiction,  shall  be  enquired  into  and 
tried  by  commissioners  appointed  by  the  crown  as  if  the 
offences  had  been  committed  on  land.  The  commissions  can 
be  issued  to  the  Admiral,  his  deputy,  or  three  or  four  other 
substantial  persons  to  be  appointed  by  the  Lord  Chancellor. 
In  1799  this  Act  was  extended  to  the  trial  of  all  offences  com- 
mitted on  the  high  seas.4 

15  Co.  Rep.  107  (Sir  Henry  Constable's  case).  "Below  the  low  water 
mark  the  Admiral  has  the  sole  and  absolute  jurisdiction.  Between  the 
high  water  mark  and  low  water  mark  the  common  law  and  the  Admiral 
have  divisum  imperium  interchangeably." 

*  Select  Pleas  of  the  Admiralty  (S.  S.)  i  liv.      . 

*28  Henry  VIII.  c.  15. 

*39  Geo.  III.  c.  37. 


312    //.     FROM    THE    1100'S    TO    THE    1800'S 

The  three  or  four  substantial  persons  to  be  appointed  under 
the  act  of  Henry  VIII.  came  to  be  invariably  the  judges  of 
the  Common  Law  Courts.  The  indirect  result  of  the  act  was, 
therefore,  to  transfer  the  criminal  jurisdiction  of  the  Admi- 
ralty to  the  Courts  of  Common  Law.1 

—  Special  commissions  under  this  act  have  been  rendered 
obsolete  by  later  legislation.  In  1834  the  Central  Criminal 
Court  Act  gave  to  that  court  the  jurisdiction  of  these  special 
commissioners.2  In  1844  a  similar  jurisdiction  was  given  to 
the  ordinary  justices  of  oyer  and  terminer  and  gaol  delivery.8 
Provisions  to  the  same  effect  are  contained  in  the  Criminal 
Law  Consolidation  Acts4  and  the  Merchant  Shipping  Acts.6 

The  Criminal  jurisdiction  of  the  Admiralty  has  thus  for 
three  centuries  been  exercised  by  the  Courts  of  Common  Law. 
It  has,  for  this  reason,  almost  wholly  lost  the  international 
character  which  marked  all  branches  of  the  maritime  law  in 
the  Middle  Ages.  Piracy  "  at  common  law  "  is  perhaps  the 
only  crime,  which  still  retains  some  trace  of  an  international 
character,  in  the  rule,  that  it  can  be  tried  by  the  court  of  any 
country  wherever  and  by  whomsoever  committed.  The  crim- 
inal jurisdiction  of  the  Admiralty,  having  been  administered 
by  the  ordinary  courts,  has  become  part  and  parcel  of  the 
common  law,  to  be  spelt  out  of  English  statutes,  to  be  changed 
only  as  that  law  is  changed.  This  fact  was  strikingly  illus- 
trated by  Reg.  v.  Keyn.Q  No  consensus  of  international  jur- 
ists was  held  sufficient  to  give  to  the  English  courts  a  crim- 
inal jurisdiction  over  foreigners  not  recognised  by  English 
law.  Cockburn,  C.  J.,  denied  that  a  consensus  of  jurists 
could  effect,  in  maritime  law,  what,  in  another  branch  of  the 
old  law  merchant,  he  allowed  might  be  effected  by  a  consensus 
of  merchants.7  The  case  was  decided  by  a  bare  majority. 
We  may,  perhaps,  conjecture  that  it  would  have  been  decided 
the  other  way,  if  the  criminal  jurisdiction  of  the  Admiralty 

1  Stephen,  H.  C.  L.  ii  19.  •  4,  5  Will.  IV.  c.  36  §  22. 

»  7,  8  Viet.  e.  2. 

4 24,  25,  Viet.  c.  96  $  115;  c.  97  §  72;  c.  98  §  50;  c.  99  §  36;  c.  100 
§  68. 

5  They  deal  with  crimes  committed  on  British  ships  or  by  British 
seamen.'  17,18  Viet.  c.  104  §  267;  18,  19  Viet.  c.  91  §  21;  57,  58  Viet  c. 
60  §  686,  687. 

•  (1877)  I,.  R.  2  Ex  Div.  63,  202. 

T  Goodwin  v.  Robarts  (1875)  L.  R.  10  Ex.  337;  below. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   313 

had  been  freely  developed  in  the  court  of  Admiralty,  and  not 
in  the  Courts  of  Common  Law. 

(6)   Civil  Jurisdiction. 

We  have  seen  that  under  the  Tudors  the  court  of  Admi- 
ralty claimed  a  wide  jurisdiction.  Ij  seemed  inclined  to  dis- 
regard altogether  the  limitations  which  statutes  had  imposed 
upon  it.  The  extent  of  the  jurisdiction  which  it  claimed  will 
appear  from  a  list  of  the  cases  which,  during  this  period,  were 
brought  before  the  court. l  It  practically  comprised  all  mer- 
cantile and  shipping  cases.  "  All  contracts  made  abroad, 
bills  of  exchange  (which  at  this  period  were  for  the  most 
part  drawn  or  payable  abroad),  commercial  agencies  abroad, 
charter  parties,  insurance,  average,  freight,  non-delivery  of, 
or  damage  to,  cargo,  negligent  navigation  by  masters,  mar- 
iners, or  pilots,  breach  of  warranty  of  seaworthiness,  and 
other  provisions  contained  in  charter  parties ;  in  short,  every 
kind  of  shipping  business  was  dealt  with  by  the  Admiralty 
court."  2  The  Admiralty  court  was,  in  fact,  regarded  as  one 
of  the  recognised  tribunals  of  the  Law  Merchant.3  In  addi- 
tion, the  court  exercised  jurisdiction  over  various  torts  com- 
mitted on  the  sea,  and  in  public  rivers,  over  cases  of  collision, 
salvage,  fishermen,  harbours  and  rivers,  and  occasionally  over 
matters  transacted  abroad,  but  otherwise  outside  the  scope  of 
Admiralty  jurisdiction.4 

We  have  seen  that  during  Elizabeth's  reign  the  Common 
Law  Courts  began  their  attack  upon  the  Chancery  and  the 
Council.  It  was  not  to  be  expected  that  they  would  tamely 
acquiesce  in  the  encroachments  of  the  Admiralty.  Moreover, 
as  we  have  seen,  they  were  able  to  base  their  attack  upon  a 
statutory  basis. 

The  Common  Law  Courts  had  issued  writs  of  prohibition, 
based  upon  these  statutes,  from  an  early  period.  It  is  prob- 
able, however,  that  during  the  earlier  part  of  the  Tudor 
period  the  statutes  had  been  largely  disregarded;5  and,  as 

1  Select  Pleas  of  the  Admiralty  (S.  S.)  i  Ixv-lxxi.  Cp.  Malynes,  Lex 
Mercatoria,  303,  304  (Pt.  III.  c.  xiv). 

*  Select  Pleas  of  the  Admiralty  (S.  S.)  i  Ixvii. 

8  Malynes,  Pt.  III.  c.  xiv. 

4  Select  Pleas  of  the  Admiralty  (S.  S.)  i  Ixx.  In  the  16th  century 
"  even  marriage  contracts  and  wills  made  abroad  are  occasionally  met 
with  as  the  subject  of  suits  in  Admiralty."  'Above. 


314    //.     FROM    THE    1100'S    TO    THE    1800'S 

we  have  seen,  the  aid  of  the  legislature  had  even  been  invoked 
on  behalf  of  the  Admiralty.1  The  Admiralty,  also,  had  some- 
times assumed  the  offensive,  by  means  of  a  process  of  con- 
tempt, taken  against  those  who  brought  proceedings  upon 
maritime  causes  in  another  court.2  It  would  appear  that 
when  the  Common  Law  Courts  resumed  their  efforts  against 
the  Admiralty,  they  at  first  had  recourse  to  writs  of  super- 
sedeas  and  certiorari  issuing  from  the  Chancery.  But  such 
applications  to  the  Chancellor  often  left  the  Admiralty  with 
the  disputed  jurisdiction.  It  was  seen  that  writs  of  prohibi- 
w/'tion  were  the  most  effective  instrument  of  attack  or  defence 
which  the  Common  Law  Courts  possessed.3 

In  1575  a  provisional  agreement  was  arrived  at.  But,  after 
1606,  when  Coke  was  raised  to  the  Bench,  the  agreement  was 
repudiated. 4  Coke,  as  Buller,  J.,  once  said,  "  seems  to  have 
entertained  not  only  a  jealousy  of,  but  an  enmity  against, 
that  jurisdiction."  He  denied  that  the  court  was  a  court 
of  record.  He  denied  it  the  necessary  power  to  take  stipula- 
tions for  appearance,  and  performance  of  the  acts  and  judg- 
ments of  the  court.  He  denied  that  it  had  any  jurisdiction 
over  contracts  made  on  land,  either  in  this  country,  or 
abroad,  whether  or  no  they  were  to  be  performed  upon  the 
sea;  and  similarly  he  denied  its  jurisdiction  over  offences 
committed  on  land,  either  in  this  country,  or  abroad.6  In 
support  of  his  position  he  did  not  hesitate  to  cite  precedents 
which  were  far  from  deciding  what  he  stated  that  they  did 
decide.7  It  is  fairly  certain  that  the  earlier  prohibitions 
were  all  founded  upon  the  exercise  by  the  Admiralty  of 

1  32  Henry  VIII.  c.  14  gave  the  court  a  certain  jurisdiction  in  cases 
concerning  charter  parties  and  freight. 

1  Select  Pleas  of  the  Admiralty  (S.  S.)  i.  Ixviii,  78.  On  proof  of  the 
facts  the  party  in  contempt  was  arrested. 

*  Select  Pleas  of  the  Admiralty  (S.  S.)  ii  xli.  For  a  list  of  Prohibi- 
tions, see  ibid  i  "Ixxiii-lxxviii ;  ii  xli-lvii;  4th  Instit.  137-142;  Prynne, 
Animadversions,  75-77.  For  a  specimen  of  the  writ,  see  App.  XII.  A  2. 

4  Select  Pleas  of  the  Admiralty  (S.  S.)  ii.  xiv;  Coke,  4th  Instit.  136; 
Zouch,  Jurisdiction  of  the  Admiralty  Asserted,  Assertion  v. 

8  Smart  v.  Wolff  (1789)  3  T.  R.  348.  Lord  Holt  said  (1  Ld.  Raym. 
398)  that,  "heretofore  the  common  law  was  too  severe  against  the  Ad- 
miral." Prynne  103. 

•4th  Instit.  136-138;  Thomlinson's  case  (1605)  12  Co.  Rep.  104;  2 
Brownlow  16,  17  (1611). 

1  Prynne,  Animadversions,  75-77;  De  Lovio  v.  Boit  (1815)  2  Gall  407- 
418  (Story,  J.). 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   315 

jurisdiction  within  the  bodies  of  counties.  The  common 
law  had  not  in  the  past  claimed  jurisdiction  over  contracts 
made  or  offences  committed  abroad,  and  probably  not  over 
contracts  made  and  offences  committed  in  ports  intra  fluxum 
et  refluxum  maris.1  Such  jurisdiction  was  now  coveted.  By 
supposing  these  contracts  or  offences  to  have  been  made  or 
committed  in  England  the  Common  Law  Courts  assumed  ju- 
risdiction ;  2  and  thus  by  a  "  new  strange  poetical  fiction,*" 
and  by  the  help  of  "  imaginary  sign-posts  in  Cheapside  "  3 
they  endeavoured  to  capture  jurisdiction  over  the  growing 
commercial  business  of  the  country.  The  other  common  law 
judges  followed  Coke's  lead.  It  was  not  of  course  to  be  ex- 
pected that  all  the  cases,  decided  at  a  time  when  the  Common 
Law  Courts  were  engaged  upon  a  systematic  series  of  en- 
croachments, should  be  consistent.4  But  it  is  clear  that  they 
were  all  tending  in  one  direction,  regardless  of  the  fact  that 
the  procedure  of  the  Common  Law  Courts,  and  the  law  which 
they  applied,  were  far  less  fitted  than  that  of  the  Admiralty, 

1  De  Lovio  v.  Boit,  at  pp.  400-405;  Y.  B.  13  Hy.  IV.  Mich.  pi.  10.  Cp. 
F.  N.  B.  114,  an  English  merchant's  goods  were  spoiled  by  a  merchant 
stranger  beyond  the  sea.  A  writ  was  sent  to  the  mayor  of  the  town, 
in  which  other  merchant  strangers  of  the  same  nation  were  resident, 
directed  against  them ;  "  but  it  seemeth  that  the  English  merchant  shall 
not  have  such  writ,  for  any  debt  due  to  him  by  contract  from  a  Mer- 
chant Stranger,  upon  a  contract  made  beyond  the  seas,  if  the  merchant 
do  come  to  England,  or  his  goods  —  Quare  tamen  thereof."  Prynne, 
Animadversions,  84,  referring  to  those  cases  says,  "  neither  Statham, 
Fitzherbert,  or  Brook  in  their  Abridgments,  Titles  Prohibition,  nor  any 
of  our  Year  Books  Abridged  by  them,  nor  yet  Mr.  Crompton  in  his 
Jurisdiction  of  Courts,  nor  yet  judge  Crook's  nor  Serjeant  Moore's  re- 
ports, or  Hughes  or  Serjeant  Rolle,  their  late  Abridgments  cite  any  such 
precedents  before  7  Jac.  or  King  Charles  his  reign."  Life  of  Sir  Leoline 
Jenkins,  Wynne,  i  Ixxix. 

*  Bl.  Conim.  iii  107. 

*  Prynne,  Animadversions,  95,  97. 

*  Sir  R.  Buckley's  case  (1590)  2  Leo.  182,  agreement  made  in  England 
for  assistance  at  sea  in  taking  a  prize;    Admiralty  jurisdiction  seems 
to  be  recognised.    Tucker  v.  Cappes  and  Jones  (1625)  2  Rolle  497,  suit 
on  a  contract  made  in  Virginia;    Prohibition  refused;    it  was  said  that 
the  Admiralty  had  jurisdiction  over  things  done  in  foreign  parts,  that 
foreign  contracts  were  governed  by  the  civil  law,  and  that  it  was  not 
reasonable  that  the  common  law  should  judge  of  them.     Ambassador 
of  King  of  Spain  v.  Joliff  and  others,  Hob.  78,  79,  "the  Admiralty  of 
England  can  hold  no  plea  of  any  contract  but  such  as  ariseth  upon  the 
sea:   no,  though  it  arise  upon  any  continent,  port,  or  haven  in  the  world 
out  of  the  king's  dominions.  .  .  .  The  Courts  of  Common  Law  have  un- 
limited power  in  causes  transitory."     Coke  said,  2  Brownlow  17  (1611), 
that  if  a  question  of  civil  law  arose  the  judges  could  consult  with  the 
civilians.    De  Lovio  v.  Boit  2  Gall  422. 


316    //.     FROM    THE    1100'S    TO    THE    1800'S 

to  deal  with  the   cases   over  which  they   claimed   jurisdic- 
tion. 

The  merchants  keenly  felt  the  ill  effects  of  these  attacks 
made  by  the  Common  Law  Courts.  A  conflict  of  jurisdiction 
must  always  give  advantages  to  the  unscrupulous  litigant. 
It  was  clear  that  the  Admiralty  process  was  more  speedy,  and 
therefore  more  fit  to  deal  with  the  cases  of  merchants  and 
mariners.  "  Not  one  cause  in  ten  comes  before  that  court 
but  some  of  the  parties  or  witnesses  in  it  are  pressing  to  go 
to  sea  with  the  next  tide."  *  The  Admiralty  could  issue  com- 
missions to  examine  witnesses  abroad,  and  it  could  examine 
the  parties  themselves.  "  The  merchant  if  he  can  avoid  the 
Admiralty,  where  h'e  must  answer  upon  oath,  and  proof  may 
be  made  by  commission,  thinks  himself  secure  from  any 
danger  at  the  common  law."2  The  Admiralty  could  arrest 
the  ship,  and  thus  give  far  more  effective  security  to  those 
who  had  been  employed  upon  it.  The  Admiralty  could  allow 
all  the  mariners  to  sue  together  for  their  wages,  whereas  the 
Common  Law  Courts  insisted  upon  separate  actions.  The 
judges  of  the  court  of  Admiralty,  being  civilians,  were  far 
more  likely  to  be  able  to  understand  contracts  made  abroad 
with  reference  to  the  civil  law. 3  Two  cases,  put  by  Sir  Leo- 
line  Jenkins  in  his  argument  before  the  House  of  Lords  in 
1660,  illustrate  the  incompetence  of  the  Common  Law  Courts 
to  deal  with  the  jurisdiction  which  they  claimed.  In  the  first 
case  put,  a  Spanish  merchant  resident  in  Spain  owes  money 
to  A.  The  Spanish  merchant  has  a  ship  in  an  English  port, 
which  the  Admiralty  process  alone  can  reach.  An  action  is 
brought  by  A  in  the  court  of  Admiralty.  The  ship  is  ar- 
rested ;  but  in  consequence  of  a  prohibition  it  is  released. 
What  is  the  use  of  suing  a  debtor  in  Spain  with  no  available 
property  in  this  country?  In  the  second  case  A  owes  money 
to  a  Spanish  merchant.  The  Spaniard  sues  in  the  Admiralty, 
and  is  prohibited.  He  then  sues  at  common  law,  and,  to 
prove  his  case,  produces  a  copy  of  his  contract.  A  pleads 
"  non  est  factum."  The  original  is  in  Spain  deposited  with  a 

1  Life  of  Sir  Leoline  Jenkins,  Wynne,  i  Ixxxii. 

•  Zouch,  Jurisdiction,  etc.,  130. 

8  Life  of  Jenkins  i  Ixxvii,  Ixxxiii.    Zouch  129   130. 


9.     HOLDSWORTH:   THE  LAW  MERCHANT    317 

notary  who  will  not  part  with  it.     The  Spaniard  loses  his  case 
for  want  of  evidence.1 

Another  compromise  was  attempted  in  1632.  Charles  I. 
issued  a  commission  to  the  Privy  Council,  empowering  it  to 
reconcile  the  differences  between  the  Common  Law  Courts  and 
the  Admiralty.  Sir  Leoline  Jenkins  said  that  the  agreement 
arrived  at  was  "  the  result  of  many  solemn  debates,  and  not 
of  artifice  or  surprise."  2  We  can  well  believe  this,  if  we  con- 
sider the  ill  results  which  followed  from  the  assumption  of 
jurisdiction  by  the  Courts  of  Common  Law.  The  agreement 
conceded  to  the  Admiralty  a  jurisdiction  in  the  following 
cases : — 

(1)  In  the  case  of  contracts  made,  or  wrongs  committed, 
beyond  the  sea,  or  upon  the  sea. 

(2)  In  suits  for  freight  or  mariners'  wages,  or  for  the 
breach  of  charter  parties  for  voyages  to  be  made  beyond  the 
sea,  though  the  charter  parties  are  made  within  the  realm, 
and  the  money  is  payable  within  the  realm.     But  if  the  pro- 
ceeding is  for  a  penalty,  or  the  question  is  whether  the  charter 
party  was  made  or  not,  or,  if  made,  has  been  released,  the 
Common  Law  Courts  have  jurisdiction. 

(3)  In  suits  for  building,  amending,  saving  or  necessary 
victualling  of  a  ship,  brought  against  the  ship  itself,  though 
the  cause  of  action  arose  within  the  realm. 

(4)  The  court  is  allowed  a  jurisdiction  to  enquire  of,  and 
to  redress,  all  annoyances  and  obstructions  in  all  navigable 
rivers  beneath  the  first  bridges,  and  also  to  try  personal  con- 
tracts and  injuries  done  there  which  concern  navigation  upon 
the  sea. 

(5)  It  is  provided  that  if  any  be  imprisoned,  and,  upon 
a  writ  of  Habeas  Corpus  being  obtained,  the  exercise  of  juris- 
diction by  the  Admiralty  in  any  of  these  points  be  certified 
as  the  cause  of  the  imprisonment,  the  parties  shall  be  re- 
manded. 

It  is  probable  that  this  agreement  was  acted  upon  for  a 

1  Life  of  Jenkins  i  Ixxxi,  Ixxxii. 

1  i  Ixxxi.  It  is  printed  by  Prynne  101,  and  in  the  first  edition  of 
Croke's  reports.  In  the  later  editions  of  these  reports  it  is  stated  not  to 
be  law.  It  is  only  mentioned  in  two  cases,  Rolle,  Abridgment  533  and 
T.  Raym.  3. 


318    //.     FROM    THE    1100'S    TO    THE   1800'S 

few  years.  Prynne  cites  a  case  in  which  the  House  of  Lords 
upheld  the  jurisdiction  of  the  Admiralty  in  1645  ;J  and  an 
ordinance  passed  in  the  time  of  the  Commonwealth  conceded 
to  the  court  a  jurisdiction  similar  to  that  which  was  conceded 
to  it  by  the  agreement  of  1632.2 

But,  as  we  have  seen,  the  Great  Rebellion  ensured  the  vic- 
tory of  the  common  law  over  jurisdictions  which  threatened 
to  be  its  rivals.  Although  the  merchants  of  London  peti- 
tioned Parliament  to  give  to  the  court  of  Admiralty  a  juris- 
diction similar  to  that  which  had  been  given  to  it  in  the  time 
of  the  Commonwealth,  they  petitioned  in  vain.3  The  civil 
jurisdiction  of  the  Court  was  reduced  to  a  very  low  ebb. 
Torts  committed  on  the  high  seas;  contracts  made  on  the 
high  seas  to  be  there  executed;  proceedings  in  rem  on  bot- 
tomry bonds  executed  in  foreign  parts;  the  enforcement  of 
the  judgments  of  foreign  Admiralty  courts;  suits  for  the 
wages  of  mariners,4  were  almost  the  only  pieces  of  jurisdic- 
tion which  it  was  allowed  to  exercise.  Pepys  5  tells  us  that 
he  went  to  St.  Margaret's  Hill  in  Southwark,  "  where  the 
judges  of  the  Admiralty  come,  and  the  rest  of  the  Doctors  of 
Civill  law."  He  remarks,  "  I  perceive  that  this  court  is  yet 
but  in  its  infancy  (as  to  its  rising  again)  :  and  their  design 
and  consultation  was,  I  could  overhear  them,  how  to  proceed 
with  the  most  solemnity,  and  spend  time,  there  being  only  two 
businesses  to  do,  which  of  themselves  could  not  spend  much 
time." 

1  Animadversions  123-125. 

'Williams  and  Bruce,  Admiralty  Practice,  12. 

*  Sir  Leoline  Jenkins'  argument  in  favour  of  the  bill  is  printed  by 
Wynne  i  Ixxvi-lxxxv. 

4  Contracts  made  at  sea,  not  maritime  in  their  nature,  were  claimed 
by  the  Common  Law  Courts  as  not  proper  for  the  Admiral.  Contracts, 
marine  in  their  nature,  but  made  on  land,  were  claimed  by  reason  of 
their  locality.  Convenience  of  process  gave  the  Admiralty  jurisdiction 
over  seamen's  wages  after  a  struggle,  cp.  Winch  8  (1622) ;  T.  Raym.  3 
(1660);  1  Keb.  712  (1664);  2  Ld.  Raym.  1247  (1707).  The  courts 
were  very  puzzled  to  find  some  principle  on  which  they  could  justify 
their  exception,  cp.  4  Burr.  1944;  2  Ld.  Raym.  1452.  In  Clay  v.  Sud- 
grave  (1700)  Salk.  33,  it  was  stated  that,  though  against  the  statute, 
it  was  allowed  for  the  sake  of  convenience,  and,  "communis  error  facit 
jus."  The  exception  was  narrowly  construed.  Though  the  mariners 
could  sue  in  the  Admiralty  the  master  could  not. 

•Pepys'  Diary,  March  17,  1662-63.  Jenkins  said  in  his  argument  be- 
fore the  House  of  Lords,  "  I  may  truly  say  that  every  place  in  Europe 
intrusts  the  Admiral  with  more  ample  jurisdiction  than  England  does." 


9.     HOLDSWORTH:   THE  LAW  MERCHANT   319 

It  is  quite  clear  that  the  court  of  Admiralty  had  on  its  side 
not  only  historical  truth,  but  also  substantial  convenience. 
Prynne,  Zouch,  and  Jenkins  prove  clearly  both  these  facts. 
It  is  clear  that  the  opposition  of  Coke  and  the  common 
lawyers  was  unscrupulous.  But  it  is  clear  that  the  common 
law  had,  after  the  Great  Rebellion,  gained  the  upper  hand. 
And,  from  the  point  of  view  of  the  common  law,  the  attack 
had  been  skilfully  directed  upon  a  position  which  it  was 
.worth  much  to  secure;  for  the  prize  was  nothing  less  than 
jurisdiction  in  all  the  commercial  causes  of  a  country  the 
commerce  of  which  was  then  rapidly  expanding.  Its  com- 
merce was  in  the  future  destined  to  expand  beyond  the  most 
sanguine  dreams  of  the  17th  century.  Coke  could  not  foresee 
this.  But  he  worshipped  the  common  law;  and  he  rendered 
it  by  no  means  the  least  of  his  many  valuable  services  when 
he  directed,  and  perhaps  even  misdirected,  his  stores  of  tech- 
nical learning  to  secure.for  it  this  new  field.  To  the  litigant 
his  action  meant  much  inconvenience.  To  the  commercial  law 
of  this  country  it  meant  a  slower  development.1  But  to  the 
common  law  it  meant  a  capacity  for  expansion,  and  a  con- 
tinued supremacy  over  the  law  of  the  future,  which  con- 
solidated the  victories  won  in  the  political  contests  of  the 
17th  century.  If  Lord  Mansfield  is  to  oe  credited  with  the 
honourable  title  of  the  founder  of  the  commercial  law  of  this 
country,  it  must  be  allowed  that  Coke  gave  to  the  founder 
of  that  law  his  opportunity.2 

1  Select    Pleas    of  the    Admiralty  '  (S.  S.)    ii   Ixxx,   "  Many   points   of 
maritime  law  that  were  afterwards  painfully  elaborated  by  the  common 
lawyers  had  for  at  least  a  century  been  familiar  to  the  civilians,"  e.  g. 
the  liability   of  a   carrier   for  loss   by  thieves  was   discussed   at   West- 
minster in  1671.     It  had  been  settled  in  the  Admiralty  as  early  as  1640. 
We  can  say  the  same  as  to  many  questions   relating  to   Bills  of  Ex- 
change, Bills  of  Lading,  General  Average,  and  Insurance.     The  common 
law  followed  the  Admiralty  "  with  tardy  steps,  perhaps  unconsciously, 
certainly  without  acknowledgement." 

2  It  is  curious  to  note  that  a  similar  jealousy  between  the  common 
law   and  the   Admiralty   manifested   itself   in   the   United   States.     The 
Massachusetts    House   of   Representatives,   just   before   the   Revolution, 
resolved  that,  "  the  extension  of  the  powers  of  the  court  of  Admiralty 
within  this  province  is  a  most  violent  infraction  of  the  right  of  trial  by 
juries,"  Williams  and  Bruce  5  n.  k.     Cp.  Ramsay  v.  Allegre  (1827)   12 
Wheaton  611.     As  Roger  North  says  "it  is  the  foible  of  all  judicatures 
to  value  their  own  justice  and  pretend  that  there  is  none  so  exquisite  as 
theirs;   while,  at  the  bottom,  it  is  the  profits  accruing  that  sanctify  any 
court's  authority." 


320     //.     FROM    THE    1100'S    TO    THE    1800'S 

Modern  legislation  has  restored  to  the  court  of  Admiralty 
many  of  the  powers,  and  much  of  the  jurisdiction  of  which  it 
had  been  deprived  in  the  17th  century.1  It  has  been  re- 
stored, as  we  have  seen,  to  its  ancient  position  of  a  court  of 
record;  and  its  judge  has  been  given  the  powers  possessed 
by  the  judges  of  the  superior  Courts  of  Common  Law.  It  has 
been  given  jurisdiction  in  cases  of  salvage,  bottomry,  damage, 
towage,  goods  supplied  to  foreign  ships,  building,  equipping, 
and  repairing  ships,  disputes  between  co-owners.  In  addi- 
tion, it  has  been  given  a  new  jurisdiction  in  the  case  of 
booty  of  war,  if  the  crown  sees  fit  to  refer  any  such  question 
to  it,  and  a  new  jurisdiction  under  the  Foreign  Enlistment 
Act.2  But  the  contests  of  the  17th  century  have  left  their 
mark  upon  the  law  administered  by  the  court.  The  Common 
Law  Courts  often  came  to  decisions,  similar  to  those  which 
the  Admiralty  had  already  given,  upon  the  principles  of  the 
civil  law.  But  the  decisions,  though. the  same  in  substance, 
were  the  decisions  of  English  courts  and  enunciated  rules  of 
English  law.  The  law  administered  by  the  court  of  Ad- 
miralty possesses,  it  is  true,  affinities  with  the  maritime  law 
of  foreign  countries.  The  law  of  Oleron,  and  other  maritime 
codes,  may  still  be  usefully  cited  in  English  courts.  But 
Admiralty  law  has  lost  the  international  character  which  it 
once  possessed.  It  is  essentially  English  law.  "  The  law 
which  is  administered  in  the  Admiralty  Court  of  England  is 
the  English  maritime  law.  It  is  not  the  ordinary  municipal 
law  of  the  country,  but  it  is  the  law  which  the  English  Court 
of  Admiralty,  either  by  Act  of  Parliament  or  by  reiterated 
decisions  and  traditions  and  principles,  has  adopted  as  the 
English  maritime  law."  3  "  Neither  the  laws  of  the  Rhodians, 
nor  of  Oleron,  nor  of  Wisby,  nor  of  the  Hanse  Towns,  are  of 
themselves  any  part  of  the  Admiralty  law  of  England.  .  .  . 
But  they  contain  many  principles  and  statements  of  marine 
practice,  which,  together  with  principles  found  in  the  Digest, 
and  in  the  French,  and  other  ordinances,  were  used  by  the 
judges  of  the  English  Court  of  Admiralty,  when  they  were 

>3,  4  Viet.  c.  65;  13,  14  Viet.  c.  26;  24  Viet.  c.  10. 

»3,  4  Viet.  c.  65  §22;  33,  34  Viet.  c.  90  §  19. 

•The  Gaetano  and  Maria  (1882)  L.  R.  7  P.  D.  at  p.  143. 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   321 

moulding  and  reducing  to  form  the  principles  and  practice  of 
their  Court."  1  These  statements  would  not  have  been  made 
by  the  judges  of  the  Court  in  the  16th,  or  even  in  the  17th 
centuries.  The  contact  with,  and  the  control  exercised  by 
the  Courts  of  Common  Law,  have  effected  in  a  similar  way 
both  the  civil  and  the  criminal  jurisdiction  of  the  court. 

(c)   Admiralty  Droits. 

The  crown  had  originally  certain  rights  to  property  found 
upon  the  sea,  or  stranded  upon  the  shore.  2  The  chief  kinds 
of  property  to  which  the  crown  was  thus  entitled  were,  great 
fish  (such  as  whales  or  porpoises),3  deodands,4  wreck  of  the 
sea,  flotsam,  jetsam,  and  lagon,5  ships  or  goods  of  the  enemy 
found  in  English  ports,  or  captured  by  uncommissioned  ves- 
sels, and  goods  taken  or  retaken  from  pirates.6 

In  early  days,  before  the  rise  of  the  court  of  Admiralty, 
many  of  these  droits  were  granted  to  the  lords  of  manors,  or 
to  the  towns  which  possessed  Admiralty  jurisdiction.  Yar- 
mouth had  such  rights.7  In  1829  Dunwich  and  Southwold 
spent  £1000  to  determine  the  question  whether  a  puncheon 
of  whiskey,  taken  up  in  the  sea,  was  within  the  jurisdiction 
of  one  town  or  the  other.8  The  Lord  Warden  of  the  Cinque 
Ports  and  the  Ports  themselves  shared  these  droits  between 
them.9  In  1836  there  was  litigation  between  the  crown,  and 
the  owner  of  the  manor  and  castle  of  Corfe  and  the  Isle  of 

1  The  Gas  Float  Whitton,  No.  2,  L.  R.  1896,  P.  at  pp.  47,  48. 

*  Stat.  Praerogativa  Regis    (IT  Ed.   II.  St.   1  c.  xi).     On  the  whole 
subject  see  L.  Q.  R.  xv  353. 

8  Lord  Warden  of  Cinque  Ports  v.  The  King  (1831)  2  Hagg.  Adm. 
438. 

4  I.  e.  a  thing  causing  the  death  of  a  man,  Stephen,  H.  C.  L.  iii  77,  78; 
Holmes,  Common  Law  24-26;  Select  Pleas  of  the  Admiralty  ii  xxvi, 
xxvii.  They  were  abolished  9,  10  Viet.  c.  62. 

8  "  That  nothing  shall  be  said  to  be  wreccum  maris  but  such  goods 
only  which  are  cast  or  left  on  the  land  by  the  sea.  .  .  .  Flotsam  is  when 
a  ship  is  sunk  or  otherwise  perished  and  the  goods  float  on  the  sea. 
Jetsam  is  when  the  ship  is  in  danger  of  being  sunk,  and  to  lighten  the 
ship  the  goods  are  cast  into  the  sea,  and  afterwards,  notwithstanding, 
the  ship  perish.  Lagan  (vel  potius  Ligan)  is  where  the  goods  which  are 
so  cast  into  the  sea,  and  afterwards  the  ship  perishes,  and  such  goods 
are  so  heavy  that  they  sink  to  the  bottom,  and  the  mariners,  to  the 
intent  to  have  them  again,  tie  to  them  a  buoy  or  cork  .  .  .  and  none 
of  these  goods  are  called  wrecks  so  long  as  they  remain  in  or  upon  the 
sea,"  Sir  Henry  Constable's  case  (1601)  5  Co.  Rep.  106. 

*  Select  Pleas  of  the  Admiralty  ii  xxxix. 
Mbidxxii.         'Ibid.         "Ibid  xxiii. 


322     //.     FROM    THE    1100'S    TO    THE    1800'S 

Purbeck,  as  to  the  right  to  49  casks  of  brandy.1  If  not  so 
granted  out,  they  were  dealt  with  by  the  Common  Law 
Courts  or  by  special  commissioners. 2 

After  the  rise  of  the  court  of  Admiralty  the  Lord  High 
Admiral  becomes  entitled  to  these  droits  by  royal  grant.  At 
the  end  of  the  14th  and  the  beginning  of  the  15th  century  it 
would  appear  that  he  shared  them  with  the  crown.3  From 
the  reign  of  Henry  VI.  it  would  appear  that  they  were  gen- 
erally granted  to  him.  "  The  Admiral's  Patents  of  the  six- 
teenth and  following  centuries  contain  express  grants  of 
royal  fish,  wrecks,  waifs,  flotsam,  jetsam,  and  lagon,  as  well 
as  many  other  perquisites  connected  with  the  sea  and  the 
sea-shore." '  In  Anne's  reign,  Geor^ge  Duke  of  Denmark,  the 
Lord  High  Admiral,  surrendered  his  droits  during  the  war 
for  a  fixed  annual  sum.  The  office  was  in  commission  after 
his  death,  except  for  a  short  time,  when  it  was  held  by  George 
Duke  of  Clarence,  afterwards  William  IV.  The  droits  during 
this  period  were  always  reserved  to  the  crown,  but  in  terms 
which  showed  that  they  had  been  previously  annexed  to  the 
office  of  Admiral.5 

The  right  to  droits  carried  with  it  a  certain  jurisdiction. 
Inquisitions  were  held  into  these  droits  at  the  ports,6  or  the 
Vice-Admirals  or  droit  gatherers  reported  them  to  the  Ad- 
miral.7 The  large  terms  of  the  Admiral's  Patents  incited 
them,  or  their  grantees,  to  frequent  litigation  with  private 
persons  or  other  grantees  of  the  crown. 8  If  the  property  was 
unclaimed,  it  belonged  to  the  Admiral  or  other  person  en- 

1  The  King  v.  49  Casks  of  Brandy  3  Hagg.  Adm.  257;  5  Co.  Rep. 
107  b  it  is  said  that  "  those  of  the  west  country  prescribe  to  have  wreck 
in  the  sea  so  far  as  they  may  see  a  Humber  Barrel." 

*  Select  Pleas  of  the  Admiralty  (S.  S.)  i  xli. 

8  Black  Book  of  the  Admiralty  (R.  S.)  i  150;  Select  Pleas  of  the 
Admiralty  ii  xxiv. 

*  Select  Pleas  of  the  Admiralty  ii  xxv. 

8  The  King  v.  49  Casks  of  Brandy  3  Hagg.  Adm.  at  pp.  280,  281. 
"  During  the  last  French  war  the  sums  raised  by  droits  was  very  large. 
Sums  of  £100,000,  £190,000,  and  £58,360  are  mentioned  as  having  been 
paid  to  members  of  the  royal  family;  the  last  sum  is  stated  to  have 
been  paid  out  on  account  of  the  building,  etc.,  of  the  Pavilion  at 
Brighton,"  Select  Pleas  of  the  Admiralty  ii  xxxix. 

8  Select  Pleas  of  the  Admiralty  ii  xxvii-xxxii.        7  Ibid  xxxvii. 

'  Ibid  xviii,  xix,  xxii.  In  1619  there  was  a  dispute  between  the  Lord 
Warden  and  the  Admiral  as  to  wrecks  in  the  Goodwins.  In  1632  there 
is  a  report  to  the  Admiral  on  the  encroachments  of  Lords  of  Manors.* 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   323 

titled,  who  might  or  might  not  reward  the  finder.1  If  a 
claimant  appeared,  he  was  entitled  to  restoration  on  proof  of 
his  claim,  and  the  payment  of  a  reasonable  salvage.  Such 
salvage  was  often  allowed  to  the  Vice-Admirals  of  the  coast 
as  a  reward  for  taking  possession  of,  and  looking  after,  the 
property.2 

The  Admiralty  droits,  where  the  right  has  .not  been  granted 
to  other  persons,  are  now  transferred  to  the  consolidated 
fund.  3  But  it  is  provided  that  the  crown  may  reward  the 
finder.  In  1854  they  were  put  under  the  control  of  the  Board 
of  Trade.*  In  1894  the  method  of  dealing  with  wreck,  flot- 
sam, jetsam,  and  lagon  found  within  British  jurisdiction,  was 
regulated  by  the  Merchant  Shipping  Act. 5 

(2)   Prize  jurisdiction. 

The  term  Prize  is  applied  to  the  property  of  a  belligerent 
seized  at  sea.  Prizes  can  as  a  rule  only  be  made  by  some 
vessel  acting  under  the  authority  of  the  government.6  It  is 
clear  that  many  complicated  questions  must  arise  as  to  the 
ownership  of  the  ships  or  goods  so  captured.  Such  questions 
tended  to  become  more  complicated  with  the  growth,  during 
the  18th  century,  of  that  part  of  international  law  which 
relates  to  the  rights  and  duties  of  neutrals.  Lord  Stowell,  by 
his  decisions  in  the  many  cases  arising  out  of  the  wars  at  the 
end  of  the  18th  and  the  beginning  of  the  19th  century,  settled 
the  principles  of  prize  jurisdiction  of  the  Admiralty,  as  he 
settled  the  principles  of  the  instance  jurisdiction  of  the 
court. 

From  a  very  early  period  jurisdiction  over  prize  was  vested 
in  the  Admiral  or  the  Council.  It  is  clear  that  the  Admiral 
had  such  jurisdiction  in  1357.7  Special  provisions  with  re- 
gard to  the  exercise  of  the  jurisdiction  were  often  made  by 

1  Select  Pleas  of  the  Admiralty  xxxviii. 

1  Ibid  xxxvii.  As  to  wreck  see  ibid  xxxix-xli;  Hamilton  v.  Davis 
(1771)  5  Burr.  2732.  •  1  Will.  IV.  c.  25;  1,  2  Viet.  c.  2. 

4  17,  18  Viet.  c.  120  §  10. 

5  57,  58  Viet.  c.  60  §§  510-529. 

6  Pitt-Cobbett,  Leading  Cases  in  International  Law   (Ed.  1892)   205. 
Prizes  can  only  be  made  by  private  vessels  if  they  have  been  attacked 
in  the  first  instance,  ibid  211. 

7  Rhymer,  Foedera,  vi  14,  15,  a  letter  to  the  King  of  Portugal  stating 
that  the  Admiral  had  rightly  condemned  goods  of  his  subjects  captured 
by  the  French,  and  taken  in  French  ships. 


324     //.     FROM   THE    1100'S    TO    THE    1800'S 

treaties  with  foreign  sovereigns.  In  1498  a  treaty  between 
Henry  VII.  and  Louis  XII.  stipulates  that  manners  shall 
give  notice  to  the  Admiral  of  any  spoil  which  they  have  taken, 
and  that  they  are  not  to  dispose  of  it  until  the  Admiral  has 
adjudged  it  to  be  lawful  prize.1  We  can  see  that,  from  the 
16th  century,  the  prize  jurisdiction  of  the  court  is  beginning 
to  be  regarded  as  distinct  from  the  instance  jurisdiction.2 
Captors  sailing  under  commissions  granted  by  allies  of  Eng- 
land, as  well  as  captors  sailing  under  English  commissions, 
resorted  to  the  Admiralty  court.  "  These  cases  frequently 
resolved  themselves  into  suits  between  the  respective  Ambas- 
sadors of  the  powers  to  which  the  captor  and  prize  be- 
longed."' Prohibitions  were  not  as  a  rule  issued  in  prize 
cases.4  Shortly  after  the  Restoration  the  court  held  distinct 
sittings  for  prize  business,  and  the  records  of  such  business 
were  kept  distinct.  It  became  the  custom  to  issue  special 
commissions  to  the  Admiral  at  the  beginning  of  a  war,  re- 
quiring the  judge  of  his  court  to  hear  prize  cases.5  The 
ordinary  commission  did  not  mention  this  jurisdiction.6  The 
prize  court  thus  became  a  court  almost  entirely  distinct  from 
the  instance  court.  Lord  Mansfield  could  say  in  1781  that, 
"  the  whole  system  of  litigation  and  jurisprudence  in  the 
prize  court  is  peculiar  to  itself:  it  is  no  more  like  the  court 
of  Admiralty  than  it  is  to  any  court  in  Westminster  Hall."  7 
The  Naval  Prize  Act  of  1864,  passed  to  enact  permanently 
the  provisions  before  usually  made  at  the  beginning  of  a  war, 
gives  to  the  court  of  Admiralty  the  jurisdiction  of  a  prize 
court  throughout  His  Majesty's  dominions.8  This  jurisdic- 
tion is  now  exercised  by  the  Probate,  Divorce,  and  Admiralty 

1  Rhymer,  Foedera,  xii  690-694;  xiv  147-151;  cp.  a  case  before  the 
Council  (1589)  cited  Malynes,  Lex  Mercatoria,  108,  109. 

•  Select  Pleas  of  the  Admiralty  ii  xvii,  xviii. 
'  Select  Pleas  of  the  Admiralty  ii  xvii,  170. 

4  Lindo  v.  Rodney  (1781)  2  Dougl.  613,  618,  619.  In  his  judgment 
Ld.  Mansfield  gives  a  complete  history  of  the  Prize  jurisdiction.  Cp. 
Select  Pleas  of  the  Admiralty  ii  Ixxix. 

•  Lindo  v.  Rodney  614;    re  Banda  and  Kirwee  Booty   (1866)   L.   R. 
1  A  and  E  129;    13  Car.  II.  c.  9;   22,  23  Car.  II.  c.  11;    6  Anne  c.  13. 

•  Possibly    the   jurisdiction    was   originally    regarded    as    inherent    in 
the  court.     In  1793  a  claim  to  this  effect  was  put  forward  by  the  Admi- 
ralty court  of  Ireland.     It  is  said  to  have  been  the  opinion  of  Sir  W. 
Wynne  that  the  Admiralty  of  Scotland  had  a  similar  jurisdiction. 

7  Lindo  v.  Rodney  614.  «27,  28  Viet  c.  25. 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   325 

division  of  the  High  Court.1  The  appeal  from  the  prize 
court  was  to  the  Council,2  and,  after  1833,  to  the  Judicial 
Committee  of  the  Council.  We  shall  see  that  appeals  from 
the  instance  court  now  go  to  the  House  of  Lords.  Appeals 
from  the  prize  court  still  go  to  the  Council. 3 

It  was  in  fact  inevitable  that  the  distinction  between  the 
prize  and  the  instance  business  of  the  Admiralty  should  grow 
more  definite  with  the  growing  definiteness  of  the  principles 
of  International  Law  on  the  one  side,  and  the  principles  of 
Admiralty  Law  as  administered  in  English  courts  on  the 
other.  The  court  of  Admiralty  administers,  as  we  have  seen, 
English  Admiralty  law.  Though  for  historical  reasons  it 
resembles  in  general  outline  the  maritime  law  of  Europe,  it 
is  essentially  English  law.4  The  two  greatest  judges  who 
have  sat  in  a  prize  court  have  laid  it  down  that  a  prize  court 
administers  international  law.  Lord  Mansfield  said, 6  "  by  the 
law  of  nations  and  treaties  every  nation  is  answerable  to  the 
others  for  all  injuries  done,  by  sea  or  land,  or  in  fresh  waters, 
or  in  port.  Mutual  convenience,  eternal  principles  of  justice, 
the  wisest  regulations  of  policy,  and  the  consent  of  nations, 
have  established  a  system  of  procedure,  a  code  of  law,  and  a 
court  for  the  trial  of  prize.  Every  country  sues  in  these 
courts  of  the  others,  which  are  all  governed  by  the  same  law 
equally  known  to  each."  Lord  Stowell  said  in  the  case  of  the 
Recovery,6  "  It  is  to  be  recollected  that  this  is  a  court  of  the 
law  of  nations,  though  sitting  here  under  the  authority  of  the 
King  of  Great  Britain.  It  belongs  to  other  nations  as  well 
as  to  our  own ;  and,  what  foreigners  have  a  right  to  demand 
from  it,  is  the  administration  of  the  Law  of  Nations  simpty, 
and  exclusively  of  the  introduction  of  principles  borrowed 
from  our  own  municipal  jurisprudence."  It  may  be  that 
English  statutes  or  orders  in  Council  will  compel  the  judge 
to  depart  from  these  principles.7  But  it  is  these  principles 
which  form  the  basis  of  the  law  administered.  This  is  fully 

54,  55  Viet.  c.  53  §4. 

Bl.  Comm.  iii  69,  70;    3,  4  Will.  IV.  c.  41  §2. 
54,  55  Viet.  c.  53  §  4,  3.          «  Above. 
Lindo  v.  Rodney  616. 
6  C.  Rob.  348,  349    (1807). 

The    Fox    and    Others    (1811)    Edw.    312-314;     Phillimore,    Inter- 
national Law  (Ed.  1857)  iii  535,  541. 


326    //.     FROM   THE   1100'S    TO    THE    1800'S 

recognised  by  the  statutes  of  this  century  which  deal  with 
prize  jurisdiction.1  By  reason  of  its  international  character, 
the  prize  jurisdiction  of  the  Admiralty,  resembles,  more 
closely  than  the  ordinary  jurisdiction  of  the  court,  the  mari- 
time law  of  the  Middle  Ages. 

*  (iii)  The  decay  of  the  special  courts  administering  the 
commercial  part  of  the  Law  Merchant,  and  its  absorption 
into  the  common  law  system. 

With  the  increase  in  commerce  in  the  14th  and  15th  cen- 
turies, a  division  and  specialization  of  trades  and  industries 
begins  to  take  place.  The  large  trader  or  the  merchant  be- 
comes entirely  distinct  from  the  small  trader  or  the  crafts- 
man. The  old  Guild  Merchant,  which  embraced  all  the 
traders  in  a  town,  gives  place  to  separate  companies  of  mer- 
chants on  the  one  side,  and  to  separate  craft  guilds  on  the 
other. 2 

The  internal  trade  of  the  country  continued  to  be  largely 
regulated  by  the  companies  of  merchants,  or  the  craft  guilds, 
which  usually  possessed  large  powers  over  trade,  and  some- 
times a  monopoly  of  trade  in  their  own  town.3  It  was 
strongly  felt  that  "  a  general  liberty  of  trade  without  a 
regulation  doth  more  hurt  than  good ;  "  4  and  throughout  the 
18th  century  there  are  cases  in  which  the  courts  upheld  these 
powers.?  They  were  finally  abolished  by  the  Municipal  Cor- 
porations Act  of  1835.6 

Though  the  old  organization  of  trade  lingered  on  till  the 

1  27,  28  Viet.  c.  25  §§  37  and  55. 

*  In  Edward  II.'s  reign  the  crafts  in  London  were  divided  into  the 
two  classes   of  officia  mercatoria  and  officia  manuoperalia,   Munimenta 
Gildhallae  i  495;    but  the  trade  of  London  was  so  extensive  that  it  was 
in  advance  of  other  towns,  Gross,  Gild  Merchant,  i  129. 

8  Gross,  Gild  Merchant,  i  chaps,  vii  and  viii;  Newcastle  Merchant 
Adventurers  (Surtees  Soc.)  i  xxxiii,  xxxiv,  xxxiv-xl. 

4  Mayor  and  Commonalty  of  Colchester  v.  Goodwin  (1666)  Carter's 
Rep.  114,  120. 

•Mayor  of  Winton  v.  Wilks  (1705)  2  Ld.  Raym.  1129,  Holt  con- 
sidered that  a  power  to  restrain  persons  from  exercising  their  trade  was 
had.  Such  powers  were  upheld  in  Bodwic  v.  Fennell  (1748)  1  Wils.  233, 
and  Wooley  v.  Idle  (1766)  4  Burr.  1951. 

•  5,  6  Will.   IV.  c.  76  §  14.     "  Whereas  in  divers  cities,  towns,  and 
boroughs   a   certain   custom   has   prevailed,   and   certain   bye-laws    have 
been  made,  that  no  person  not  being  free  of  a  city,  town,  or  borough, 
or  of  certain  guilds,  mysteries,  or  trading  companies  within  the  same 
.  .  .  shall  keep  any  shop  or  place  for  putting  to  show  or  sale  any  or 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   327 

19th  century,  the  internal  trade  of  the  country  had  in  the 
16th  century  practically  ceased  to  be  ruled  by  a  special  law 
and  by  special  courts.  The  companies  of  merchants  and  the 
craft  guilds  possessed  no  jurisdiction  of  their  own.  Some 
few  courts  of  fairs  survived ;  and  we  have  seen  that  the  courts 
of  some  large  cities  still  continued  to  exercise  jurisdiction. 
But,  except  in  so  far  as  statutes  drew  a  distinction  between 
traders  and  others,1  the  trader's  or  the  merchant's  dealings 
were  not  treated  differently  from  those  of  any  other  class  in 
the  community.  They  were  governed  by  the  common  law, 
and  generally  by  the  Common  Law  Courts.  The  common  law 
had  borrowed  certain  rules  front  the  law  merchant.  The  rules 
that  there  is  no  warranty  of  title  in  a  sale  of  goods,2  and  that, 
under  some  circumstances,  a  sale  in  market  overt  by  a  non- 
owner  will  pass  the  property,3  probably  come  from  this 
source.  The  merchant's  view  of  the  efficacy  of  the  earnest 
money  to  bind  the  bargain  was  recognised  by  the  Statute  of 
Frauds.4  By  the  end  of  the  16th  century  the  internal  trade 
of  the  country  was  regulated  by  the  common  law  so  modified, 
and  not  by  a  separate  Law  Merchant. 

The  foreign  trade  of  the  country  continued  for  a  longer 
period  to  be  governed  by  a  separate  Law  Merchant.  In 
France,  Italy,  and  Germany  the  usages  of  the  merchants 
were,  in  the  14th  and  15th  centuries,  treated  of  by  many 
writers.  In  the  17th  century  their  works  had  been  adapted 
by  writers  like  Malynes,  Marius,  Molloy,  and  Beawes.  They 
all  considered  the  merchant  as  a  class  apart  and  subject  to 

certain  wares  or  merchandize  by  way  of  retail  or  otherwise,  or  use 
any  or  certain  trades,  occupations,  mysteries,  or  handicrafts  for  hire, 
gain,  or  sale  within  the  same;  be  it  enacted  that  notwithstanding  any 
such  custom  or  bye-law,  every  person  in  any  borough  may  keep  any 
shop  for  the  sale  of  all  lawful  wares  and  merchandizes  by  wholesale 
or  retail,  and  use  every  lawful  trade  .  .  .  within  any  borough." 

1  Instances    are    the    earlier    bankruptcy    acts,    and    the    earlier    acts 
rendering  the   real   estate  of  deceased   persons  liable  to   their   debts. 

2  3  Co.   Rep.   22;    Parke  B.,  Morley  v.   Attenborough    (1849)    3   Ex. 
500,  511. 

3  Coke,  2nd   Instit.   713,  714.     Coke  draws  his  rules  as  to  the  condi- 
tions  under  which  this   is   allowed   from   the  Year   Books  of   Hy.   VI.- 
Hy.    VII.'s    reigns,    and    from    some   cases    of    Henry   and    Elizabeth's 
reign.     Cp.  Hargreave  v.  Spink,  L.  R.  1892.  1  Q.  B.  25. 

*Carta  Mercatoria  (Munimenta  Gildhallae  ii  Pt.  1  205);  29  Car.  II. 
c.  3  §17;  P.  and  M.  ii  206,  207. 


328    //.    FROM    THE    1100'S    TO    THE    1800'S 

a  separate  law.1  "  It  is  a  customary  law,"  says  Malynes, 
"  approved  by  the  authority  of  all  kingdoms  and  common- 
wealths, and  not  a  law  established  by  the  sovereignty  of  any 
prince ; "  and,  "  the  said  customary  law  of  merchants  hath  a 
peculiar  prerogative  above  all  other  customs,  for  that  the 
same  is  observed  in  all  places."  3  "  That  commonwealth  of 
merchants,"  says  Davies,4  "  hath  always  had  a  peculiar  and 
proper  law  to  rule  and  govern  it;  this  law  is  called  the  Law 
Merchant  whereof  the  law  of  all  nations  do  take  special  knowl- 
edge." Davies,  however,  recognised  that  it  was  only  the 
foreign  trade  of  the  country  that  was  now  ruled  by  this 
special  law.  "  Merchandizes  that  cross  the  seas  are  goods  of 
another  nature,  quality,  and  consideration  than  other  goods 
and  chattels,  which  are  possessed  within  the  realm,  and  do 
not  cross  the  seas."  5 

It  is  clear  from  these  writers  that  specific  differences  be- 
tween the  Law  Merchant  and  the  common  law  could  still 
be  pointed  out.  There  was  no  survivorship  in  the  case  of 
merchants  who  were  joint  tenants.  Wager  of  law  was  un- 
known among  them.  Bills  of  exchange,  policies  of  assurance, 
assignations  of  debts  were  all  unknown  to  the  common  law.6 

But  by  the  end  of  the  17th  century  this  Law  Merchant 
was  being  gradually  absorbed  into  the  general  legal  system 
of  the  country.  As  in  the  case  of  the  internal  trade,  so  in  the 
case  of  the  foreign  trade,  the  older  mercantile  courts  had 
ceased  to  exist.  Jurisdiction  was  therefore  assumed  by  the 
ordinary  courts  of  law  and  equity. 

We  have  seen  that  in  the  Middle  Ages  the  courts  of  the 

1  Smith,  Merc.  Law  (Ed.  1890)  Ixxx,  Ixxxi.  In  the  East  India  Com- 
pany v.  Sandys  (1684)  10  S.  T.  at  pp.  523-525  Jeffries  drew  a  clear 
distinction  between  inland  and  foreign  trade. 

*  Lex  Mercatoria  Preface. 
8  Lex  Mercatoria  3. 

*  The  Question  concerning  Impositions    (Ed.  1656)    10.     Davies  was 
Attorney-General  to  James  I. 

8  Ibid  11,  12  citing  Y.  B.  13  Ed.  IV.  pi.  9.  He  said  that  he  had 
wondered  why  there  were  so  few  cases  in  the  books  concerning  mer- 
chants. "  But  now  the  reason  thereof  is  apparent,  for  the  common 
law  of  the  land  doth  leave  these  cases  to  be  ruled  by  another  law, 
namely,  the  Law  Merchant,  which  is  a  branch  of  the  law  of  nations," 
16,  17. 

*  Davies    12-15 ;     Malynes    73-76 ;     East    India    Company    v.    Sandys 
(1684)   10  S.  T.  at  p.  524. 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   329 

Staple  were  the  chief  courts  which  regulated  the  dealings  of 
foreign  merchants.  Malynes  says,  "  our  staple  of  wools  is 
now  out  of  use,  and  staple  towns  are  all,  as  it  were,  in- 
corporated into  London."  l  It  is  clear  from  his  account  of 
the  courts  which  administer  the  law  merchant  that  there  was 
in  England,  in  the  latter  part  of  the  17th  century,  no  effective 
court  specially  set  apart  for  the  merchants.2  In  the  16th 
and  earlier  17th  centuries  the  Council  and  the  court  of  Ad- 
miralty had  supplied  the  place  of  such  a  court.  But  the 
jurisdiction  of  the  Council  in  England  had  come  to  an  end  in 
1640;  and  we  have  seen  that  the  Courts  of  Common  Law  had 
deprived  the  Admiralty  of  the  greater  part  of  its  jurisdiction 
over  mercantile  causes.  In  1601  3  a  court  had  been  estab- 
lished in  London  consisting  of  the  recorder,  two  doctors  of 
the  civil  law,  two  common  lawyers,  and  eight  "  grave  and 
discreet  "  merchants,  to  hear  insurance  cases,  "  in  a  brief 
and  summary  course,  as  to  their  discretion  shall  seem  meet, 
without  formalities  of  pleadings  or  proceedings."  But  it  had 
been  held,  in  1658,  that  proceedings  before  this  court  were  no 
bar  to  an  action  at  law ;  4  and  it  was  constantly  hampered  by 
prohibitions.5  Merchants  were  therefore  driven,  either  to 
arbitration,6  or  to  the  courts  of  law,  or,  in  matters  which 
involved  the  taking  of  accounts,  to  the  court  of  Chancery.7 
Reported  cases  of  the  17th  century  illustrate  the  effect  of  this 
upon  the  Law  Merchant.  They  show  that  mercantile  law  is 
ceasing  to  be  the  law  of  a  class,  and  that  it  is  becoming  part 
of  the  general  law  of  the  land.  The  earlier  cases  upon  Bills 
of  Exchange  treat  them  as  ruled  by  special  customs,  applica- 

1  Lex  Mercatoria  155.  2  Ibid,  Pt.  III.  chaps,  xiv-xx. 

*  43  Eliza,  c.  12.    Reenacted  and  amended  13,  14,  Car.  II.  c.  23. 

*  Came  v.  Moye  2  Sid.  121. 

8  It  was  said  in  1787  that,  from  the  reign  of  Elizabeth  to  1765, 
when  Ld.  Mansfield  became  C.  J.,  it  had  not  heard  60  cases  on  marine 
insurance,  Smith,  Merc.  Law,  Ixix. 

8  Malynes,  Pt.  III.  c.  xv;    cp.  Dasent  xxii  xxxiv;   xxiii  xlvi. 

7  "  Merchants'  causes  are  properly  to  be  determined  by  the  Chan- 
cery, and  ought  to  be  done  with  great  expedition;  but  it  falleth  out 
otherwise,  because  they  are  by  commission  commonly  referred  to  mer- 
chants to  make  report  of  the  state  thereof  unto  the  Lord  Chancellor," 
Malynes  319.  There  is  an  affinity  between  the  jus  gentium  of  the 
merchants  and  English  equity,  as  there  was  between  the  Roman  jus 
gentium  and  jus  naturale.  Duller  J.  Lickbarrow  v.  Mason  (1793)  1 
S.  L.  C.  709. 


330    //•     FROM    THE    1100'S    TO    THE   1800'S 

ble  only  to  merchants,  which  it  is  necessary  to  prove. l  In 
1699  Treby,  C.  J.,  said  that  Bills  of  Exchange  at  first  ex- 
tended only  to  merchant  strangers  trading  with  English 
merchants;  afterwards  to  inland  Bills  between  merchants 
trading  with  one  another  in  England;  and  lastly  to  all 
persons  whether  traders  or  not;  and  that  there  was  now  no 
need  to  allege  and  prove  the  custom.2 

The  process  was  assisted,  after  the  Revolution,  by  the 
greater  freedom  allowed  to  foreign  trade.  In  the  16th  and 
17th  centuries  foreign  trade  was  in  the  hands  of  companies 
incorporated  by  the  crown  with  exclusive  rights  to  trade.3 
The  validity  of  such  grants  was  upheld,  in  1684,  in  the  East 
India  Company  v.  Sandys. 4  It  is  clear  that  such  an  organiza- 
tion of  trade  will  tend  to  the  settlement  of  disputes  by  the 
arbitration  of  the  governing  body  of  the  company.  But,  in 
1693,  trade  had  been  to  a  large  extent  freed  by  a  resolution 
of  Parliament,  "  that  it  is  the  right  of  all  Englishmen  to 
trade  to  the  East  Indies,  or  any  part  of  the  world,  unless 
prohibited  by  Act  of  Parliament."  5  It  was  a  natural,  though 
perhaps  an  indirect  result,  of  the  Great  Rebellion  and  the 
Revolution  that  the  ordinary  courts  should  thus  absorb  juris- 
diction over  mercantile  cases.  The  fact  that  the  Law  Mer- 
chant was  not  English  law,  but  jus  gentium,  had  been  used 
to  prove  that  the  crown  had  such  large  powers  over  trade, 
that  it  could  impose  impositions,  or  create  a  monopoly. 6  It 
was  clear  that  the  Law  Merchant  must  be  administered  in  the 

1  Oaste  v.  Taylor  (1613)  Cro.  Jac.  306,  the  custom  of  the  merchants 
is  fully  set-out.  Similarly  in  Woodward  v.  Rowe  (1669)  2  Keb.  105. 
In  Witherley  v.  Sarsfield,  Shower  127  (1689)  Holt  said  that  the  aqt 
of  drawing  a  bill  made  a  man  a  trader  for  this  purpose. 

*  Bromwich  v.  Lloyd  2  Lut.  1582,  1585.     Cp.  Chalmers,  Bills  of  Ex- 
change,  xlv-xlvii,   as   to  the   result   of   this   upon   the   English   law   of 
Bills  of  Exchange. 

8  Gross,  Gild  Merchant,  i  140-156;  Hall,  Customs  Revenue,  i  50-54; 
L.  Q.  R.  xvi  54. 

4  10  S.  T.  371.  Cp.  Company  of  Merchant  Adventurers  v.  Rebow 
(1687)  3  Mod.  Rep.  126,  128. 

1  Newcastle   Merchant   Adventurers    (Surtees   Soc.)    i   xli-xliv. 

*  This  is  the  argument  of  Davies'   work  upon   impositions,  chap.  vi. 
"  Forasmuch  as  the  general  law  of  nations  which  is   and  ought  to  be 
law  in  all   Kingdoms,  and  the  Law   Merchant  which  is  also   a  branch 
of  that  law,  and  likewise  the  Imperiall  or  Roman  law,  have  ever  been 
admitted   by   the   kings   and   people   of   England   in   causes   concerning 
Merchants  and  Merchandize.  .  .  .  Why  should  not  this  question  of  Im- 


9.     HOLDSWORTH:  THE  LAW  MERCHANT   331 

ordinary  courts  of  law  or  equity  if  it  was  to  be  made  to  har- 
monize with  the  now  established  principles  of  English  law. 

The  complete  incorporation  of  the  Law  Merchant  with 
the  common  law  was  not  effected  till  the  time  of  Lord 
Mansfield.  Up  to  his  time  mercantile  business  had  been 
divided  between  the  courts  of  law  and  equity.  No  attempt 
had  been  made  to  reduce  it  to  a  system. 1  This  Lord  Mans- 
field accomplished,  and  this  entitles  him  to  the  fame  of  being 
"  the  founder  of  the  commercial  law  of  this  country."  2  The 
Law  Merchant  has  ceased  to  be  a  separate  body  of  law 
administered  by  separate  courts :  "  it  is  neither  more  nor  less 
than  the  usages  of  merchants  and  traders  .  .  .  ratified  by 
the  decisions  of  courts  of  law,  which  upon  such  usages  being 
proved  before  them,  have  adopted  them  as  settled  law."  3 

positions  be  examined  and  decided  by  the  rules  of  those  laws,  so  far 
forth  as  the  same  doth  concern  Merchants  or  Merchandizes,  as  well  as 
by  the  rules  of  our  Common  Law  of  England?"  Cp.  Bate's  case  (1606) 
2  S.  T.  at  p.  389. 

1  Campbell,  Lives  of  the  Chief  Justices,  ii  402,  403. 

*  "  We  find  in  Snee  v.  Prescott  that  Ld.  Hardwicke  himself  was  pro- 
ceeding with  great  caution,  not  establishing  any  general  principle,  but 
decreeing  on  all  the  circumstances  of  the  case  put  together.  Before 
that  periqd  we  find  that  in  courts  of  law  all  the  evidence  in  mercan- 
tile cases  was  thrown  together;  they  were  left  generally  to  a  jury, 
and  they  produced  no  established  principle.  From  that  time  we  all 
know  the  great  study  has  been  to  find  some  certain  general  principles, 
which  shall  be  known  to  all  mankind,  not  only  to  rule  the  particular 
case  then  under  consideration,  but  to  serve  as  a  guide  for  the  future. 
...  I  should  be  very  sorry  to  find  myself  under  a  necessity  of  differing 
from  any  case  on  this  subject  which  has  been  decided  by  Lord  Mans- 
field, who  may  be  truly  said  to  be  the  founder  of  the  commercial  law 
of  this  country,"  Buller  J.  Lickbarrow  v.  Mason  (1793)  1  S.  L.  C. 
674,  685. 

8  Goodwin  v.  Robarts  (1875)  L.  R.  10  Ex.  337,  346;  cp.  Brandao  v. 
Barnett  (1846)  12  Cl.  and  Fin.  787,  and  Edelstein  v.  Schuler  and  Co. 
L.  R.  (1902)  2  K.  B.  144,  154. 


10.    A  COMPARISON  OF  THE  HISTORY  OF  LEGAL 
DEVELOPMENT  AT  ROME  AND  IN  ENGLAND  l 

BY  JAMES  BKYCEZ 

IN  the  last  preceding  Essay  the  organs  of  legislation,  and 
the  methods  whereby  they  were  worked  at  Rome  and  in 
England  respectively,  were  discussed  and  compared.  A  con- 
sideration of  the  course  which  legal  change  took,  in  its  various 
phases  of  development,  reform  or  decay,  may  be  completed  by 
inquiring  into  the  general  causes  and  forces  which  deter- 
mined and  guided  the  process  of  change.  To  justify  the 
selection  of  Rome  and  England  for  comparison  it  is  necessary 
to  recur  to  two  points  only  in  which  the  history  of  institutions 
in  these  two  States  presents  a  remarkable  analogy.  Both 
have  been  singularly  independent  of  outside  influences  in  the 
development  of  their  political  character  and  their  legal  insti- 
tutions. The  only  influence  that  seriously  told  on  Rome  was 
that  of  the  Greeks :  yet  how  thoroughly  Roman  all  the  insti- 
tutions that  ever  had  been  Roman  remained  down  till  the 
second  century  of  the  Empire,  after  Hellenic  influence  had  for 
more  than  two  hundred  years  been  playing  freely  and  fully 
upon  literature  and  thought !  So  English  institutions  have 
been  far  less  affected  by  external  influences  than  have  been 
those  of  any  other  part  of  European  Christendom.  In 

1  The  following  essay  forms  the  fifteenth  in  the  author's  "  Studies 
in  History  and  Jurisprudence,"  1901  (New  York:  Oxford  University 
Press,  American  Branch),  pp.  745-781. 

'His  British  Majesty's  Ambassador  to  the  United  States  of  Amer- 
ica. B.  A.  Oxford  1862,  D.  C.  L.  Oxford  1870;  Fellow  of  Oriel  College 
1862;  Barrister  of  Lincoln's  Inn  1867;  Regius  Professor  of  Civil  Law 
at  Oxford,  1870-1893;  LL.  D.  Edinburgh,  Glasgow,  Michigan,  St.  An- 
drews, Harvard;  Pol.  Sc.  D.  Buda-Pest;  Litt.  D.  Victoria,  Cambridge; 
D.  C.  L.  Trinity  (Toronto). 

Other  Publications:  The  Holy  Roman  Empire,  1862;  Trade-Mark 
Law,  1877;  The  American  Commonwealth,  1888;  Impressions  of  South 
Africa,  1897;  Studies  in  Contemporary  Biography,  1903. 

332 


10.     BRYCE:    ROME    AND    ENGLAND        333 

.France,  Italy,  Germany,  and  Spain,  the  traces  of  Roman 
dominion  were  never  obliterated,  and  Roman  law  too,  both 
through  its  traditions  and  through  the  writings  which  embody 
it,  has  always  been  a  more  potent  factor  than  it  ever  was  here. 
These  countries  have,  moreover,  borrowed  more  from  each 
other  than  we  have  done  from  any  one  of  them,  except,  per- 
haps, in  the  days  when  Normandy  gave  a  Continental  tinge 
to  the  immature  feudality  of  England.  And,  secondly,  both 
Rome  and  England  have  extended  their  institutions  over  vast 
territories  lying  beyond  their  own  limits.  Each  has  been  a 
conquering  and  ruling  power,  and  the  process  by  which  each 
grew  into  a  World  State  from  being,  the  one  a  City  and  the 
other  a  group  of  small  but  widely  scattered  rural  tribes,  offers 
striking  points  of  resemblance  as  well  as  of  contrast.  I  might 
add  that  there  are  similarities  in  the  character  of  the  two 
nations,  similarities  to  which  their  success  in  conquering  and 
ruling  is  due.  But,  for  the  moment,  it  is  rather  to  law  and 
institutions  than  to  character  that  I  seek  to  direct  the  reader's 
attention. 

Since  the  law  of  every  country  is  the  outcome  and  result 
of  the  economic  and  social  conditions  of  thai;  country  as  well 
as  the  expression  of  its  intellectual  capacity  for  dealing  with 
these  conditions,  the  causes  which  modify  the  law  are  usually 
to  be  sought  in  changes  which  have  passed  upon  economic  and 
social  phenomena.  When  new  relations  between  men  arise, 
or  when  the  old  relations  begin  to  pass  into  new  forms,  law 
is  called  in  to  adjust  them.  The  part  played  by  speculative 
theorists  or  scientific  reformers  who  wish  to  see  the  law  made 
more  clear  and  rational  is  a  relatively  small  factor  in  legal 
change,  and  one  which  operates  only  at  rare  moments.  The 
process  of  development,  if  not  wholly  unconscious,  is  yet 
spontaneous  and  irregular.  Alterations  are  made,  not  upon 
any  general  plan  or  scheme,  but  as  and  when  the  need  for 
them  becomes  plain,  or  when  it  has  at  least  become  the  inter- 
est of  some  ruling  person  or  class  to  make  them. 

The  relation  of  the  general  history,  political,  economic, 
and  social,  to  changes  in  laws  and  institutions  is  best  seen  at 
certain  definite  epochs.  It  is  indeed  true  that  in  nations  which 
have  reached  a  certain  stage  of  civilization  the  conditions  of 


334    //.     FROM    THE    1100'S    TO    THE    1800'S 

life,  and  the  relations  of  men  and  classes  to  one  another,, 
never  remain  quite  the  same  from  generation  to  generation. 
Every  mechanical  discovery,  every,  foreign  war  or  domestic 
insurrection,  every  accession  or  loss  of  territory,  every  relig- 
ious or  intellectual  movement  leaves  things  somewhat  different 
from  what  it  found  them.  Nevertheless,  though  the  process 
of  change  is,  except  in  savage  or  barbarous  peoples,  practi- 
cally constant  and  uninterrupted,  it  becomes  at  certain  partic- 
ular moments  much  more  swift  and  palpable,  rushing,  so  to 
speak,  through  rapids  and  over  cataracts  instead  of  gliding 
on  in  a  smooth  and  equable  flow.  These  are  the  moments 
when  a  nation,  or  its  ruler,  perceives  that  the  economic  or 
social  transformations  which  have  been  taking  place  require 
to  be  recognized  and  dealt  with  by  corresponding  changes  in 
law  and  institutions,  or  when  some  political  disturbance,  or 
shifting  of  power  from  one  class  or  group  to  another,  sup- 
plies the  occasion  for  giving  effect  to  views  or  sentiments 
hitherto  repressed.  Accordingly  it  is  profitable  to  give  spe- 
cial attention  to  these  transitional  epochs,  because  it  is  in 
them  that  the  relation  between  causes  and  consequences  can  be 
studied  most  easjly  and  on  the  largest  scale.  Let  us  see  what 
are  the  epochs  in  Roman  and  in  English  history  which  may 
be  selected  as  those  marked  by  conspicuous  legal  or  institu- 
tional changes  before  we  examine  the  relations  of  these 
changes  to  the  forces  which  brought  them  about. 

•          /.  Five  Chief  Epochs  of  Legal  Change  at  Rome 

In  the  thousand  years  of  Roman  history  that  lie  between 
the  first  authentic  records  of  the  constitution  and  laws  of  the 
city,  say  451  B.  c.,  when  the  Decemviral  Commission,  which 
produced  the  laws  of  the  Twelve  Tables,  was  appointed,  and 
565  A.  D.,  when  Justinian  died,  having  completed  his  work  of 
codification  and  new  legislation,1  we  may  single  out  five  such 
epochs. 

1.  The  epoch  of  the  Decemviral  Legislation,  when  many  of 

1  It  is  convenient  to  stop  with  Justinian,  because  he  gave  the  law  the 
shape  in  which  it  has  influenced  modern  Europe,  and  because  our  his- 
torical data  became  much  more  scanty  after  his  time.  But  of  course  the 


10.     BRYCE:    ROME    AND    ENGLAND        335 

the  old  customs  of  the  nation,  which  had  been  for  the  most 
part  preserved  by  oral  tradition,  were  written  down,  being  no 
doubt  modified  in  the  process. 

2.  The  days  of  the  First  and  Second  Punic  Wars,  when  the 
growth  of  population  and  trade,  the  increase  of  the  number 
of  foreigners  resident  in  Rome,  and  the  conquest  by  Rome 
of  territories  outside  Italy,  began  to  induce  the  development 
of  the  Praetorship  as  an  office  for  expanding  and  slowly 
remodelling  the  law. 

3.  The  end  of  the  Republic  and  early  days  of  the  Empire, 
when  there  was  a  brilliant  development  of  juridical  litera- 
ture,  when   the   opinions   of   selected   jurists   received   legal 
authority  from  the  Emperor's  commission,  when  the  Senate 
was  substituted  for  the  popular  assemblies  as  the  organ  of 
legislation,   and  when   the   administration   of   the   provinces 
was  resettled  on  a  better  basis  —  all  these  changes  inducing 
a  more  rapid  progress  of  legal  reform. 

4.  The  reigns  of  Diocletian  and  Constantine,  when  impe- 
rial legislation  took  a  fresh  and  vigorous  start,  and  when,  the 
triumph  of  Christianity  brought  a  new,  a  powerful,  and  a 
widely  pervasive  force  into  the  field  of  politics  and  legislation. 

5.  The  reign  of  Justinian,  when  the  plan  of  codification 
whose  outlines  Julius  Caesar  had  conceived,  and  which  Theo- 
dosius   II   had   done   something   to   carry   out,   was    at   last 
completed  by  the  inclusion  of  the  whole  law  of  Rome  in  two 
books  containing  the  pith  of  the  then  existing  law,  and  when 
many  sweeping  reforms  were  effected  by  new  legislation. 

It  is  less  easy  to  fix  upon  epochs  of  conspicuous  change  in 
English  legal  institutions  and  law,  because  English  develop- 
ment has  been  on  the  whole  more  gradual,  and  because  the 
territorial  limits  of  the  area  affected  by  change  have  not 
expanded  to  anything  like  the  same  extent  as  did  the  terri- 
tories that  obeyed  Rome.  Rome  was  a  City  which  grew  to  be 
the  civilized  world:  the  Urbs  became  Orbis  Terrarum.  The 
English  were,  and  remain,  a  people  inhabiting  the  southern 
part  of  an  island,  and  beyond  its  limits  they  have  expanded 

history  of  the  law  goes  on  to  A.  D.  1204,  and  in  a  sense  even  to  A.  D.  1453, 
in  an  unbroken  stream,  the  codes  issued  by  the  later  Emperors,  and 
especially  the  Basilica  of  Leo  the  Philosopher,  being  based  upon  Justin- 
ian's redaction. 


336    //.     FROM    THE    1100'S    TO    THE    1800'S 

(except  as  respects  Ireland),  not  by  taking  in  new  territories 
as  parts  of  their  State,  but  by  planting  semi-independent 
self-governing  States  which  reproduce  England.1  However, 
one  may,  for  the  sake  of  a  comparison  with  Rome,  take  the 
five  following  epochs  as  those  at  which  the  process  of  change 
became  the  most  swift  and  the  most  effective  for  destruction 
and  creation. 

II.   Five  Epochs  of  Legal  Change  in  England 

1.  The  time  of  Henry  II,  when  the  King's  Courts  became 
organized,  and  began  to  evolve  a  Common  Law  for  the  whole 
realm  out  of  the  mass  of  local  customs. 

2.  The  times  of  Edward  I  and  Edward  III,  when  the  solidi- 
fication of  the  kingdom  saw  the  creation  of  a  partly  repre- 
sentative legislature,  the  enactment  of  important   statutes, 
and  the  establishment  of  a  vigorous  organ  for  the  develop- 
ment and  amendment  of  the  law  in  the  Chancellorship. 

3.  The  time  of  Henry  VIII  and  Edward  VI,  when  the  prog- 
ress of  society  and  an  ecclesiastical  revolution  caused  the 
passing   of   several   sweeping   legal   reforms,    separated   the 
courts  and  the  law  of  England  from  a  system  of  jurispru- 
dence which  had  influenced  it  in  common  with  the  rest  of 
Western  Christendom,  and  permanently  reduced  the  power  of 
the  clergy  and  of  clerical  ideas. 

4.  The  epoch  of  the  Great  Civil  War  and  Revolution,  when 
legislative    authority,    hitherto    shared   or   disputed   by    the 
Crown  and  the  Houses  of  Parliament,  passed  definitely  to  the 
latter,  and  particularly  to  the  popular  branch  of  Parliament, 
and  when  (as  a  consequence)  the  relation  of  the  Monarch  to 
the  landholding  aristocracy,  and  that  of  the  State  to  its 
subjects  in  religious  matters,  underwent  profound  alterations. 

5.  The  reigns  of  William  IV  and  Victoria,  when  the  rapid 
growth  of  manufacturing  industry,  of  trade,  and  of  popula- 
tion, coupled  with  the  influence  as  well  of  new  ideas  in  the 
sphere  of  government  as  of  advances  made  in  economic  and 
social  science,  has  shaken  men  loose  from  many  old  traditions 

1 1  do  not  include  India  or  the  Crown  Colonies,  because  the  popula- 
tion of  these  is  not  English. 


10.     BRYCE:    ROME    AND    ENGLAND        337 

or  prejudices,  and  has,  while  rendering  much  of  the  old  law 
inapplicable,  made  a  great  deal  of  new  legislation  indis- 
pensable. 

Now  let  us  consider  what  are  the  forces,  influences,  or 
conditions  which  at  all  times  and  everywhere  become  the 
sources  and  determining  causes  of  changes  in  laws  and  insti- 
tutions, these  latter  being  that  framework  which  society 
constructs  to  meet  its  needs,  whether  administrative  or 
econdmic  or  social. 

Five  such  determining  causes  may  be  singled  out  as  of 
special  importance.  They  are  these. 

1.  Political  changes,  whether  they  consist  in  a  shifting  of 
power  as  between  the  classes  controlling  the  government  of  a 
country,  or  affect  the  structure  of  the  governmental  machin- 
ery itself,  as  for  instance  by  the  substitution  of  a  monarch 
for  an  assembly  or  of  an  assembly  for  a  monarch. 

2.  The   increase   of  territory,   whether   as   added  to   and 
incorporated  in  the  pre-existing  home  of  a  nation  or  as  con- 
stituting a  subject  dominion. 

3.  Changes  in  religion,  whether  they  modify  the  working 
of  the  constitution  of  the  country  or  involve  the  abolition  of 
old  laws  and  the  enactment  of  new  ones. 

4.  Economic  changes,  such  as  the  increase  of  industrial 
production  or  the  creation  of  better  modes  of  communication, 
with  the  result  of .  facilitating  the  exchange  of  commodities. 

5.  The    progress    of    philosophic    or    scientific    thought, 
whether  as  enouncing  new  principles  which  ultimately  take 
shape  in  law,  or  as  prompting  efforts  to  make  the  law  more 
logical,  harmonious  and  compendious. 

The  influence  of  other  nations  might  be  added,  as  a  sixth 
force,  but  as  this  usually  acts  through  speculative  thought, 
less  frequently  by  directly  creating  institutions  and  laws,  it 
may  be  deemed  a  form  of  No.  5. 

The  two  last  of  these  five  sources  of  change,  viz.  commerce 
and  speculative  or  scientific  thought,  are  constantly,  and 
therefore  gradually  at  work,  while  the  other  three  usually, 
though  not  invariably,  operate  suddenly  and  at  definite 
moments.  All  have  told  powerfully  both  on  Rome  and  on 
England.  But  as  the  relative  importance  of  each  varies  from 


338    //.     FROM    THE    1100'S    TO    THE    1800'S 

one  country  to  another,  so  we  shall  discover  that  some  have 
counted  for  more  in  the  case  of  Rome,  some  in  that  of 
England.  The  differences  throw  an  instructive  light  on  the 
annals  of  the  two  nations. 

///.   Outline  of  Legal  Changes  at  Rome 

The  legal  history  of  Rome  begins  with  the  law  of  the 
Twelve  Tables.  This  remarkable  code,  which,  it  need  hardly 
be  said,  was  neither  a  code  in  the  modern  sense,  nor  in  the 
main  new  law,  but  rather  a  concise  and  precise  statement  of 
the  most  important  among  the  ancient  customs  of  the  people, 
dominated  the  whole  of  the  republican  period,  and  impressed 
fc.  peculiar  character  upon  the  growth  of  Roman  law  from  the 
beginning  till  the  end  of  the  thousand  years  we  are  regarding. 
It  gave  a  sort  of  unity  and  centrality  to  that  growth  which 
we  miss  in  many  other  countries,  England  inchided,  for  all 
Roman  statutes  bearing  on  private  law  were  passed  with 
reference  to  the  Twelve  Tables,  .nearly  all  commentaries 
grouped  themselves  round  it,  and  when  a  new  body  of  law 
that  was  neither  statute  nor  commentary  began  to  spring  up, 
that  new  law  was  built  up  upon  lines  determined  by  the  lines 
of  the  Twelve  Tables,  since  the  object  was  to  supply  what 
they  lacked  or  to  modify  their  enactments  where  these  were 
too  harsh  or  too  narrow.  Its  language  became  a  model  for 
the  form  which  later  statutes  received.  It  kept  before 
the  minds  of  jurists  and  reformers  that  ideal  of  a  systematic 
and  symmetrical  structure  which  ultimately  took  shape  in  the 
work  of  Theodosius  II  and  Justinian.  Now  the  law  of  the 
Twelve  Tables  was  primarily  due  to  political  discontent. 
The  plebeians  felt  the  hardship  of  being  ruled  by  customs  a 
knowledge  of  which  was  confined  to  the  patrician  caste,  and 
of  being  thereby  left  at  the  mercy  of  the  magistrate,  himself 
a  patrician,  who  could  give  his  decision  or  exert  his  executive 
power  at  his  absolute  discretion,  because  when  he  declared 
himself  to  have  the  authority  of  the  law,  no  one,  outside  the 
privileged  caste  he  belonged  to,  could  convict  him  of  error. 
Accordingly  the  plebs  demanded  the  creation  of  a  commission 
to  draft  laws  defining  the  powers  of  the  Consuls,  and  this 


10.     BRYCE:    ROME    AND    ENGLAND        339 

x 

demand  prevailed,  after  a  long  struggle,  in  the  creation  of 
the  Decemvirs,  who  were  appointed  to  draft  a  body  of  gen- 
eral law  for  the  nation.  This  draft  was  enacted  as  a  Statute, 
and  became  thenceforth,  in  the  words  of  Livy,1  "  the  fountain 
of  all  public  and  private  law."  Boys  learnt  it  by  heart  down 
to  the  days  of  Cicero,  and  he,  despite  his  admiration  for 
things  Greek,  declares  it  to  surpass  the  libraries  of  all  the 
philosophers.2 

For  some  generations  there  seem  to  have  been  compara- 
tively few  large  changes  in  private  law,  except  that  declara- 
tion of  the  right  of  full  civil  intermarriage  between  patricians 
and  plebeians,  which  the  Twelve  Tables  had  denied.  But  the 
knowledge  of  the  days  on  which  legal  proceedings  could 
properly  be  taken  remained  confined  to  the  patricians  for 
nearly  a  century  and  a  half  after  the  Decemvirs.  The  plebs 
had,  however,  been  winning  political  equality,  and  three  or 
four  years  after  the  time  when  the  clerk  Flavius  revealed 
these  pontifical  secrets  it  was  completed  by  the  admission  of 
the  plebeians  to  the  offices  of  pontiff  and  augur. 

Meanwhile  Rome  was  conquering  Italy.  The  defeat  of 
Pyrrhus  in  B.  c.  275  marks  the  virtual  completion  of  this 
process.  A  little  later,  the  First  Punic  War  gave  her  most  of 
Sicily  as  well  as  Sardinia  and  Corsica,  and  these  territories 
became  provinces,  administered  by  magistrates  sent  from 
Rome,  She  was  thus  launched  on  a  policy  of  unlimited 
territorial  expansion,  and  one  of  its  first  results  was  seen  in 
two  remarkable  legal  changes.  The  increase  in  the  power 
and  commerce  of  Rome,  due  to  her  conquests,  had  brought 
a  large  number  of  persons  to  the  city,  as  residents  or  as 
sojourners,  who  were  not  citizens,  and  who  therefore  could 
not  sue  or  be  sued  according  to  the  forms  of  the  law  proper 
to  Romans.  It  became  necessary  to  provide  for  the  litiga- 
tion to  which  the  disputes  of  these  aliens  (peregrini)  with  one 

1 "  Decem  tabularum  leges  quae  nunc  quoque  in  hoc  immense  aliarum 
super  alias  acer%ratarum  legum  cumulo  fons  omnis  publici  privatique 
est  juris"  (iii.  24). 

2 "  Bibliothecas  mehercule  omnium  philosophorum  unus  mihi  videtur 
xii  tabularum  libellus,  siquis  legum  fontes  et  capita  viderit,  et  auctori- 
tatis  pondere  et  utilitatis  ubertate  superare"  (De  Orat.  i.  44).  An  odd 
comparison,  and  one  in  which  there  is  more  of  patriotism  than  of  philos- 
ophy. 


340     //.     FROM    THE    1100'S   TO    THE    1800'S 

another  or  with  Romans  gave  rise,  and  accordingly  a  Magis- 
trate (Praetor  peregrinus)  was  appointed  whose  special 
function  it  became  to  deal  with  such  disputes.  He  was  a 
principal  agent  in  building  up  by  degrees  a  body  of  law  and 
a  system  of  procedure  outside  the  old  law  of  Rome,  which 
received  the  name  of  lus  Gentiwm  (the  law  of  the  nations) 
as  being  supposed  to  embody  or  be  founded  on  the  maxims  and 
rules  common  to  the  different  peoples  who  lived  round  Rome, 
or  with  whom  she  came  in  contact.1  Through  the  action  of 
the  older  Urban  Praetor  much  of  this  ius  gentium  found  its 
way  into  the  law  administered  to  the  citizens,  in  the  way 
described  in  the  last  preceding  Essay.  Similarly  the  Pro- 
consuls and  Propraetors,  who  held  their  courts  in  the*subject 
provinces,  administered  in  those  provinces,  besides  the  pure 
Roman  law  applicable  to  citizens,  a  law  which,  though  much 
of  it  consisted  of  the  local  laws  and  customs  of  the  particular 
province,  had,  nevertheless,  a  Roman  infusion,  and  was  prob- 
ably in  part,  like  the  ius  gentium,  generalized  from  the 
customs  found  operative  among  different  peoples,  and  there- 
fore deemed  to  represent  general  principles  of  justice  fit  to 
be  universally  applied.  The  Edicts  which  embodied  the  rules 
these  magistrates  applied  became  a  source  of  law  for  the 
respective  provinces.2 

These  remarkable  changes,  which  may  be  said  to  belong  to 
the  period  which  begins  with  the  outbreak  of  the  First  Punic 
War  (B.  c.  264),  started  Roman  law  on  a  new  course  and 
gave  birth  to  a  new  set  of  institutions  whereby  new  territories, 
ultimately  extended  to  embrace  the  whole  civilized  world, 
were  organized  and  ruled.  It  was  through  these  changes 
that  the  law  and  the  institutions  of  the  Italian  City  became  so 
moulded  as  to  be  capable  not  only  of  pervading  and  trans- 
forming the  civilizations  more  ancient  than  her  own,  but  of 
descending  to  and  influencing  the  modern  world.  Now  these 
changes,  like  those  which  marked  the  period  of  .the  Twelve 
Tables,  had  their  origin  in  political  events.  In  the  former 
case  it  was  internal  discontent  and  unrest  that  were  the  motive 
forces,  in  the  latter  the  growth  of  dominion  and  of  trade, 

1  As  to  the  ius  gentium  see  Essay  XI,  p.  570  sqq.  [in  the  original 
volume]. 

*As  to  this  see  Essay  II,  pp.  77,  78  [in  the  original  volume]. 


10.     BRYCE:    ROME    AND    ENGLAND        341 

trade  being  the  consequence,  not  so  much  of  industrial  devel- 
opment as  of  dominion.  But  in  both  cases  —  and  this  is  gen- 
erally true  of  the  ancient  world  as  compared  with  the  modern 
—  political  causes  play  a  relatively  greater  part  than  do 
causes  either  of  an  economic  or  an  intellectual  and  speculative 
order.  J 

How  much  is  to  be  set  down  to  external  influences?  The 
Roman  writers  tell  us  of  the  sending  out  of  a  body  of  roving 
commissioners  to  examine  the  laws  of  Athens  and  other  Greek 
cities  to  collect  materials  for  the  preparation  of  the  Twelve 
Tables.  So  too  the  contact  of  Rome  with  the  Greek  republics 
of  Southern  Italy  in  the  century  before  the  Punic  Wars  must 
have  affected  the  Roman  mind  and  contributed  to  the  ideas 
which  took  shape  in  the  ins  gent'vum.  Nevertheless  any  one 
who  studies  the  fragments  of  the  Twelve  Tables  will  find  in 
them  comparatively  few  and  slight  traces  of  any  foreign 
influence;  and  one  may  say  that  both  the  substance  of  the 
Roman  law  and  the  methods  of  procedure  it  followed  remain, 
down  till  the  end  of  the  Republic,  so  eminently  national  and 
un-Hellenic  in  their  general  character  that  we  must  assign 
a  secondary  part  to  the  play  of  foreign  ideas  upon  them. 

The  next  epoch  of  marked  transition  is  that  when  the 
Empire  of  Rome  had  swollen  to  embrace  the  whole  of  the 
West  except  Britain  and  Western  Mauretania,  and  the  whole 
of  the  known  East  except  Parthia.2  It  was  the  epoch  when 
the  Republican  Constitution  had  broken  down,  not  merely 
from  internal  commotions,  but  under  the  weight  of  a  stu- 
pendous dominion,  and  it  was  also  the  epoch  when  the 
philosophies  of  Greece  had  made  the  Roman  spirit  cosmo- 
politan, and  dissolved  the  intense  national  conservatism  in 

*Of  course  I  do  not  mean  to  disparage  the  immense  importance  of 
economic  causes  always  and  everywhere,  but  in  the  ancient  world,, 
where  communities  were  mostly  small,  they  tended  more  quickly  to 
engender  political  revolutions,  and  thus  their  action  became  involved 
with  politics.  In  the  modern  world,  where  nations  are  mostly  large 
and  political  change  is  usually  more  gradual,  economic  factors  fre- 
quently tell  upon  society  and  affect  the  working  of  institutions  without 
leading  to  civic  strife.  The  more  the  world  develops  and  settles  down, 
and  the  further  it  moves  away  from  its  primitive  conditions,  the  greater 
becomes  the  relative  significance  of  the  economic  elements. 

*  "  Parthos  atque  Britannos  "  are  aptly  coupled  by  Horace  as  the  two 
peoples  that  remained  outside  the  Empire. 


342     //.     FROM    THE    1100'S    TO    THE    1800'S 

legal  matters  which  distinguished  the  older  jurists.  Here, 
therefore,  two  forces  were  at  work.  The  one  was  political. 
It  laid  the  foundations  of  new  institutions,  which  ripened  into 
the  autocracy  of  the  Empire.  It  substituted  the  Senate  for 
the  popular  Assembly  as  the  organ  of  legislation.  It  gave 
the  head  of  the  State  the  power  of  practically  making  law, 
which  he  exercised  in  the  first  instance  partly  as  a  magistrate, 
partly  through  the  practice  of  issuing  to  selected  jurists  a 
commission  to  give  answers  under  his  authority.1  The  other 
force  was  intellectual.  It  made  the  amendment  of  the  law,  in 
a  liberal  and  philosophical  sense,  go  forward  with  more  bold- 
ness and  speed  than  ever  before,  until  the  application  of  the 
new  principles  had  removed  the  cumbrousness  and  harshness 
of  the  old  system.  But  it  should  be  remembered  that  this 
intellectual  impulse  drew  much  of  its  power  from  political 
causes,  because  the  extension  of  the  sway  of  Rome  over  many 
subject  peoples  had  accustomed  the  Romans  to  other  legal 
systems  than  their  own,  and  had  led  them  to  create  bodies  of 
law  in  which  three  elements  were  blent  —  the  purely  Roman, 
the  provincial,  and  those  general  rules  and  maxims  of 
common-sense  justice  and  utility  which  were  deemed  univer- 
sally applicable,-  and  formed  a  meeting-ground  of  the  Roman 
and  the  provincial  notions  and  usages.  So  here  too  it  is 
political  events  that  are  the  dominant  and  the  determining 
factor  in  the  development  both  of  private  law  and  of  the  im- 
perial system  of  government,  things  destined  to  have  a  great 
future,  not  only  in  the  form  of  concrete  institutions  adopted 
by  the  Church  and  by  mediaeval  monarchy,  but  also  as  the 
source  of  creative  ideas  which  continued  to  rule  men's  minds 
for  many  generations. 

Nearly  three  centuries  later  we  come  to  another  epoch,  when 
two  forces  coincide  in  effecting  great  changes  in  law  and  in 
administration.  The  storms  that  shook  and  seemed  more  than 
once  on  the  point  of  shattering  the  fabric  of  the  Empire  from 
the  time  of  Severus  Alexander  to  that  of  Aurelian  (A.  D.  235 
to  270),  had  shown  the  need  for  energetic  measures  to  avert 
destruction ;  and  the  rise  to  power  of  men  of  exceptional  ca- 

1  Described  in  the  last  preceding  Essay,  pp.  677,  678  [in  the  original 
volume]. 


10.     BRYCE:    ROME    AND    ENGLAND        343 

pacity  and  vigour  in  the  persons  of  Diocletian  and  Constan- 
tine  enabled  reforms  to  be  effected  which  gave  the  imperial 
government  a  new  lease  of  life,  and  made  its  character  more 
purely  despotic.  Therewith  came  the  stopping  of  the  persecu- 
tion of  the  Christians,  and  presently  the  recognition  of  their 
religion  as  that  which  the  State  favoured,  and  which  it  before 
long  began  to  protect  and  control.  The  civil  power  admitted 
and  supported  the  authority  of  the  bishops,  and  when  doc- 
trinal controversies  distracted  the  Church,  the  monarchs, 
beginning  from  Constantine  at  the  Council  of  Nicaea,  endea- 
voured to  compose  the  differences  of  jarring  sections. 

These  changes  told  upon  the  law  as  well  as  upon  institu- 
tions. New  authorities  grew  up  within  the  Church,  and  these 
authorities,  after  long  struggles,  obtained  coercive  power. 
Not  only  was  the  spirit  of  legislation  in  such  subjects  as 
slavery  and  the  family  altered  —  marriage  and  divorce,  for 
instance,  began  to  be  regarded  with  new  eyes  —  but  a  fresh 
field  for  legislation  was  opened  up  in  the  regulation  of  various 
ecclesiastical  or  semi-ecclesiastical  matters,  as  well  as  in  the 
encouragement  or  repression  of  certain  religious  opinions. 
The  influence  on  law  of  Greek  customs,  which  seemed  to  have 
been  expunged  by  the  extension  of  citizenship  to  all  subjects  a 
century  before  Constantine,  makes  itself  felt  in  his  legislation. 

Besides  these  influences  belonging  to  the  sphere  of  politics 
and  religion,  economic  causes,  less  conspicuous,  but  of  grave 
moment,  had  also  been  at  work  in  undermining  the  social 
basis  of  the  State  and  inducing  efforts  to  apply  new  legisla- 
tive remedies.  Slavery  and  the  decline  of  agriculture,  par- 
ticularly in  the  Western  half  of  the  Empire,  throughout 
which  there  seems  to  have  been  comparatively  little  manu- 
facturing industry,  had  reduced  the  population  and  the 
prosperity  of  the  middle  classes,  and  had  exhausted  the 
source  whence  native  armies  could  be  drawn.  Thus  social 
conditions  were  changing.  The  growth  of  that  species  of 
serfdom  which  the  Romans  called  colonatus  belongs  to  this 
period.  The  financial  strain  on  the  government  became  more 
severe.  New  expedients  had  to  be  resorted  to.  All  these 
phenomena,  coupled  with  the  more  autocratic  character 
which  the  central  government  of  the  Empire  took  from 


344    li.     FROM    THE    1100' S    TO    THE    1800' S 

Diocletian  onwards,  induced  a  great  and  sometimes  indeed 
a  hasty  and  feverish  exuberance  of  legislation,  which  was 
now  effected  solely  by  imperial  ordinances. 

Industrial  decay  seems  to  have  been  more  rapid  in  Western 
than  in  the  Eastern  provinces,  though  palpable  enough  in 
such  regions  as  Thrace  and  Greece.  But  everywhere  there 
was  an  intellectual  decline,  which  appeared  ^not  least  in  the 
sinking  of  the  level  of  juristic  ability  and  learning.  The 
great  race  of  jurists  who  adorned  the  first  two  and  a  half 
centuries  of  the  Empire  had  long  died  out.  We  hear  of  no 
fertile  legal  minds,  no  law  books  of  merit  deserving  to  be 
remembered,  during  the  fourth  and  fifth  centuries  of  our  era. 
The  mass  of  law  had  however  increased,  and  the  judges  and 
practising  advocates  were,  except  in  the  larger  cities,  less 
than  ever  capable  of  dealing  with  it.  The  substitution  of 
Roman  for  provincial  law  effected  by  the  Edict  of  the 
Emperor  Antoninus  Caracalla  had  introduced  some  confusion, 
especially  in  the  Eastern  provinces,  where  Greek  or  Oriental 
customs  were  deeply  rooted,  and  did  not  readily  give  place  to 
Roman  rules.  The  emperors  themselves  deplore  the  ignorance 
of  law  among  practitioners:  and  presently  it  was  found 
necessary  to  prescribe  an  examination  for  advocates  on  their 
admission  to  the  bar.  Accordingly  the  necessity  for  collect- 
ing that  which  was  binding  law  and  for  putting  it  into  an 
accessible  form  became  greater  than  ever.  It  had  in  earlier 
days  been  an  ideal  of  perfection  cherished  by  theorists ;  it 
was  now  an  urgent  practical  need.  It  was  not  the  bloom  and 
splendour  but  the  decadence  of  legal  study  and  science  that 
ushered  in  the  era  of  codification.  A  century  after  the  death 
of  Constantine,  the  Emperor  Theodosius  II,  grandson  of 
Theodosius  the  Great,  reigning  at  Constantinople  from  A.  D. 
408  to  A.  D.  450,  issued  a  complete  edition  of  the  imperial 
constitutions  in  force,  beginning  from  the  time  of  Con- 
stantine, those  of  earlier  Emperors  having  been  already 
gathered  into  two  collections  (compiled  by  two  eminent  ju- 
rists) in  current  use.  Shortly  before  a  statute  had  been 
issued  giving  full  binding  authority  to  all  the  writings  (ex- 
cept the  notes  of  Paul  and  Ulpian  upon  Papinian)  of  five 
specially  famous  jurists  of  the  classical  age  (Papinian,  Paul, 


10.     BRYCE:    ROME   AND   ENGLAND        345 

Gains,  Ulpian,  Modestinus ) .  The  advisers  of  Theodosius  II 
had  intended  to  codify  the  whole  law,  including  the  ancient 
statutes  and  decrees  of  the  Senate  and  Edicts  of  magistrates 
so  far  as  they  remained  in  force,  as  well  as  the  writings  of 
the  jurists,  but  the  difficulties  were  too  great  for  them,  and 
they  contented  themselves  with  a  revised  edition  of  the  more 
recent  imperial  constitutions. 

Justinian  was  more  energetic,  and  his  codification  of  the 
whole  law  of  the  Empire  marks  an  epoch  of  supreme  impor- 
tance in  the  history  not  merely  of  Rome  but  of  the  civilized 
world,  for  it  is  possible  that  without  it  very  little  of  the 
jurisprudence  of  antiquity  would  have  been  preserved  to  us, 
so  that  the  new  nations  which  were  destined  to  emerge  from 
the  confusion  of  the  Dark  Ages  might  have  lacked  the  foun- 
dation on  which  they  have  built  up  the  law  of  the  modern 
world.  It  is  indeed  an  epoch  which  stands  alone  both  in  legal 
and  in  political  history. 

Justinian's  scheme  for  arranging  and  consolidating  the  law 
included  a  compilation  of  extracts  from  the  writings  of  the 
jurists  of  the  first  three  centuries  of  the  Empire,  together 
with  a  collection  of  such  and  so  many  of  the  Constitutions 
of  the  Emperors  as  were  to  be  left  in  force,  both  collections 
being  revised  so  as  to  bring  the  contents  of  each  into  accord 
and  to  harmonize  the  part  of  earlier  date  (viz.  that  which 
contained  the  extracts  from  the  old  jurists)  with  the  later 
law  as  settled  by  imperial  ordinances.  It  was  completed  in 
the  space  of  six  years  only  —  too  short  a  time  for  so  great 
a  work.  It  was  followed  by  a  good  deal  of  fresh  legislation, 
for  the  Emperor  and  his  legal  minister  Tribonian,  having 
had  their  appetite  whetted,  desired  to  amend  the  law  in  many 
further  points  and  reduce  it  to  a  greater  symmetry  of  form 
and  perfection  of  substance.  The  Emperor  moreover  desired, 
for  Tribonian  was  probably  something  of  a  Gallic  in  such 
matters,  to  give  effect  to  his  religious  sentiments  both  by 
laying  a  heavy  hand  on  heretics  and  by  making  the  law  more 
conformable  to  Christian  ideas.  Thus  the  time  of  Justinian 
is  almost  as  significant  for  the  changes  made  in  the  substance 
of  the  law  as  for  the  more  compendious  and  convenient  form 
into  which  the  law  was  brought. 


346    //.     FROM    THE    1100'S    TO    THE    1800'S 

Some  thirty  years  before  the  enactment  of  Justinian's 
Codex  and  Digest  (which,  though  intended  for  the  whole 
Empire,  did  not  come  into  force  in  such  Western  provinces 
as  had  already  been  lost)  three  collections  of  law  had  been 
made  by  three  barbarian  kings  for  the  governance  of  their 
HOI  nan  subjects.  These  were  the  Edictum  of  Theodorich, 
King  of  the  East  Goths,  published  in  A.  D.  500,  the  Lex 
Romana  Visigothorum,  commonly  called  the  Breviarium  Ala- 
ricianum,  published  by  Alarich  II,  King  of  the  West  Goths 
(settled  in  Aquitaine  and  Spain),  in  A.  D.  506,  a  year  before 
his  overthrow  by  Clovis,  and  the  Lex  Romana  Burgwndionum, 
published  by  the  Burgundian  King  Sigismund  in  the  begin- 
ning of  the  sixth  century.  These  three  compilations,  each  of 
which  consists  of  a  certain  number  of  imperial  Constitutions, 
with  extracts  from  a  few  jurists,  ought  to  be  considered  in 
relation  to  Justinian's  work,  partly  because  each  of  them 
did  for  a  part  of  the  Roman  West  what  he  did  for  the  East, 
and,  as  it  turned  out,  for  Italy  and  Sicily  also,  when  Beli- 
sarius  reconquered  those  countries  for  him,  and  partly  because 
they  were  due  to  the  same  need  for  accessible  abridgements 
of  the  huge  mass  of  confused  and  scattered  law  which 
prompted  the  action  of  Justinian  himself.  They  are  parts 
of  the  same  movement,  though  they  have  far  less  importance 
than  Justinian's  work,  and,  unlike  his,  include  little  or  no 
new  law. 

The  main  cause  of  the  tendency  to  consolidate  the  law 
and  make  it  more  accessible  was  the  profusion  with  which 
Diocletian  and  his  successors  had  used  their  legislative  power, 
flooding  the  Empire  with  a  mass  of  ordinances  which  few 
persons  could  procure  or  master,  together  with  the  decline  of 
legal  talent  and  learning,  which  made  judges  and  advocates 
unable  to  comprehend,  to  appropriate  and  to  apply  the 
philosophical  principles  and  fine  distinctions  stored  up  in  the 
treatises  of  the  old  jurists.  Here,  therefore,  political  and 
intellectual  conditions,  conditions  rather  of  decline  than  of 
progress,  lay  at  the  root  of  the  phenomenon.  But  in  the 
case  of  Justinian  something  must  also  be  credited  to  the 
enlightened  desire  which  he,  or  Tribonian  for  him,  had  con- 
ceived of  removing  the  complexities,  irregularities  and  dis- 


10.     BRYCE:   ROME    AND    ENGLAND       347 

crepancies  of  the  old  law,  bringing  it  nearer  to  what  they 
thought  substantial  justice,  and  presenting  it  in  concise  and 
convenient  form.  Plato  desired  to  see  philosophy  in  the  seat 
of  power,  and  in  Justinian  philosophic  theory  had  a  chance 
such  as  it  seldom  gets  of  effecting  permanently  important 
changes  by  a  few  sweeping  measures.  Yet  theory  might  have 
failed  if  it  had  not  been  reinforced  by  the  vanity  of  an  auto- 
crat who  desired  to  leave  behind  him  an  enduring  monu- 
ment. 

This  rapid  survey  has  shown  us  that  two  forces  were 
always  operative  on  the  development  of  Roman  law  —  inter- 
nal political  changes  and  the  influence  of  the  surrounding 
countries.  As  Rome  conquered  and  Romanized  them,  they 
compelled  her  institutions  to  transform  themselves,  and  her 
law  to  expand.  Economic  conditions,  speculative  thought  and 
religion  had  each  and  all  of  them  a  share  in  the  course  which 
reforms  took,  yet  a  subordinate  share. 

IV.     Outline  of  the  Progress  of  Legal  Changes  in  England 

Let  us  now  turn  to  England  and  see  what  have  been  the 
forces  that  have  from  time  to  time  brought  about  and 
guided  the  march  of  legal  change,  and  what  have  been  the 
relations  of  that  change  to  the  general  history  of  the  country. 

As  with  Rome  we  began  at  the  moment  when  the  ancient 
customs  were  first  committed  to  writing  and  embodied  in  a 
comprehensive  statute,  so  in  England  it  is  convenient  to  begin 
at  the  epoch  when  the  establishment  of  the  King's  Courts 
enabled  the  judges  to  set  about  creating  out  of  the  mass  of 
local  customs  a  body  of  precedents  which  gave  to  those  cus- 
toms definiteness,  consistency  and  uniformity.  Justice,  fixed 
and  unswerving  justice,  was  in  the  earlier  Middle  Ages  the 
chief  need  of  the  world,  in  England  as  in  all  mediaeval 
countries ;  and  the  anarchy  of  Stephen's  reign  had  disposed 
men  to  welcome  a  strong  government,  and  to  acquiesce  in 
stretches  of  royal  power  that  would  otherwise  have  been 
distasteful.  Henry  II  was  a  man  of  great  force  of  character 
and  untiring  energy,  nor  was  he  wanting  in  the  talent  for 
selecting  capable  officials.  He  had  to  struggle,  not  only 


348    //.     FROM    THE    1100'S   TO    THE    1800'S 

aguinst  the  disintegrating  tendencies  of  feudalism,  but  also 
against  the  pretensions  of  the  churchmen,  who  claimed  exemp- 
tion from  his  jurisdiction,  and  maintained  courts  which  were 
in  some  directions  formidable  rivals  to  his  own.  He  prevailed 
in  both  contests,  though  it  was  not  till  long  after  that  the 
victory  was  seen  to  have  remained  with  the  Crown.  It  was 
his  fortune  to  live  at  a  time  when  the  study  of  law,  revived 
in  the  schools  of  Italy,  had  made  its  way  to  England,  where  it 
was  pursued  with  a  zeal  which  soon  told  upon  the  practice  of 
the  Courts,  sharpening  men's  wits  and  providing  for  them  an 
arsenal  of  legal  weapons.  It  is  true  that  the  law  taught  at 
the  Universities  was  the  Roman  law,  and  that  the  practi- 
tioners were  almost  entirely  ecclesiastics.  Now  the  barons, 
however  jealous  they  might  be  of  the  Crown,  were  not  less 
jealous  of  ecclesiastical  encroachments  and  of  the  imperial 
law.  They  could  not  prevent  judges  from  drawing  on  the 
treasures  which  the  jurists  of  ancient  Rome  had  accumulated, 
but  they  did  prevent  the  Roman  law  from  becoming  recog- 
nized as  authoritative;  so  that  whatever  it  contributed  to 
the  law  of  England  came  in  an  English  guise,  and  served 
rather  to  supplement  than  to  supersede  the  old  customs  of 
the  kingdom. 

In  this  memorable  epoch,  which  stamped  upon  the  common 
law  of  England  a  character  it  has  never  lost,  the  impulse 
which  the  work  of  law-making  received  came  primarily  from 
the  political  circumstances  of  the  time,  that  is,  from  the 
desire  of  the  king  to  make  his  power  as  the  receiver  of  taxes 
and  the  fountain  of  justice  effective  through  his  judges,  and 
from  the  sense  in  all  classes  that  the  constant  activity  of  the 
Courts  in  reducing  the  tangle  of  customs  to  order,  no  less 
than  the  occasional  activity  of  the  king  when  he  enacted 
with  the  advice  and  consent  of  his  Great  Council  statutes 
such  as  the  Constitutions  of  Clarendon,  was  a  beneficial 
activity,  wholesome  to  the  nation.  But  though  political 
causes  were  the  main  forces  at.  work,  much  must  also  be 
allowed  to  the  influence  of  ideas,  and  particularly  to  the 
intellectual  stimulus  and  the  legal  training  which  the  study 
of  Roman  jurisprudence  had  given  to  the  educated  men  who 
surrounded  and  worked  for  the  king  and  the  bishops. 


10.     BRYCE:    ROME    AND    ENGLAND        349 

The  development  of  English  institutions  has  been  at  all 
times  so  slow  and  so  comparatively  steady  that  it  is  not  easy 
to  fix  upon  particular  epochs  as  those  most  conspicuously 
marked  by  change.  However  I  take  the  epoch  of  Edward 
I  and  Edward  III.  Under  Edward  I,  whose  reign  was  one  of 
comparative  domestic  tranquillity,  the  organ  of  government 
whose  supreme  legislative  authority  was  to  become  unques- 
tioned took  its  final  shape  in  passing  from  a  Great  Council 
of  magnates  to  an  Assembly  consisting  of  two  Houses,  in  one 
of  which  the  chief  tenants  of  the  Crown  sat,  while  the  other 
was  composed  of  representatives  of  the  minor  tenants  and  of 
boroughs.  Under  his  grandson  the  chief  judicial  Minister 
of  the  Crown  began  to  sit  as  a  Court,  granting  redress  in 
the  name  of  the  Crown  in  cases  or  by  methods  which  the  pre- 
existing Courts  were  unable  or  unwilling  to  deal  with.  Par- 
liament passed  under  Edward  I  some  statutes  of  the  first 
magnitude,  such  as  Quia  Emptores  and  De  Donis  Conditio- 
nalibus,  which  impressed  a  peculiar  character  on  the  English 
land  system,  and  introduced  some  valuable  improvements  in 
the  sphere  of  private  rights  and  remedies.  But  the  legisla- 
ture was,  for  two  or  three  centuries,  in  the  main  content  to 
leave  the  building  up  of  the  law  to  the  old  Common  Law 
Courts  and  (in  later  days)  to  the  Chancellor.  The  action 
of  this  last-named  officer  was,  during  the  fifteenth,  sixteenth 
and  seventeenth  centuries,  of  capital  importance,  so  that  the 
establishment  of  his  jurisdiction  is  one  of  the  landmarks  of 
our  legal  history.  It  was  really  a  renewal,  two  hundred  years 
after  Henry  IPs  time,  of  that  king's  efforts  to  secure  the  due 
administration  of  justice  through  the  realm,  but  it  grew  up 
naturally  and  spontaneously,  with  less  of  conscious  purpose 
than  Henry  II  had  shown.  Both  the .  legislature  and  the 
Chancellor  were  the  outcome  of  political  causes,  but  it  must 
not  be  forgotten  that  in  the  methods  taken  by  the  Chancellor 
(hardly  reduced  to  a  system  till  the  seventeenth  century)  we 
find  the  working  of  a  foreign  influence  which  thereafter  dis- 
appears from  English  law,  that,  namely,  of  the  civil  and 
canon  laws  of  Rome  and  of  the  Roman  Church,  for  the  Chan- 
cellors of  the  fourteenth  and  fifteenth  centuries  were  all 
ecclesiastics  and  drew  largely  from  Roman  sources. 


350    //.     FROM    THE    1100'S    TO    THE    1800'S 

The  days  of  the  Reformation  bring  two  new  and  powerful 
influences  to  bear  upon  laws  and  institutions.  One  of  these 
influences  is  economic,  the  other  religious.  The  growth  of 
industry  and  trade  had  so  far  disintegrated  the  old  structure 
of  society  and  brought  about  new  conditions  that  not  a  few 
new  laws,  among  which  the  most  familiar  and  significant  are 
the  Statute  of  Uses  and  the  Statute  of  Wills,  were  now 
needed.  The  nation  was  passing  out  of  the  stiffness  of  a 
society  based  on  landholding  and  recognizing  serfdom  into  a 
larger  and  freer  life.  At  the  same  time  the  religious  revolu- 
tion which  severed  it  from  Rome,  which  was  accompanied  by 
the  dissolution  of  the  monasteries,  and  which  ended  by  secur- 
ing the  ascendency  of  a  new  body  of  theological  ideas  and  of 
simpler  forms  of  worship,  involved  many  legal  changes.  The 
ecclesiastical  courts  were  shorn  of  most  of  their  powers,  and 
the  law  they  administered  was  cut  off  from  the  influences  that 
had  theretofore  moulded  and  dominated  it.  The  position  of 
the  clergy  was  altered.  New  provisions  for  the  poor  soon 
began  to  be  called  for.  New  tendencies,  the  result  of  a  bolder 
spirit  of  inquiry,  made  themselves  felt  in  legislation.  One  sees 
them  stirring  in  the  mind  of  Sir  Thomas  More.  It  was  some 
time  before  the  religious  and  economic  changes  took  their  full 
effect  upon  the  law.  But  nearly  all  the  remarkable  develop- 
ments that  make  the  time  of  Henry  VIII  and  Elizabeth  an 
epoch  of  legal  change,  may  be  traced  not  so  much  to  politics 
as  to  the  joint  influence  of  commerce  (including  the  growth 
of  personal,  as  distinguished  from  real,  property)  and  of 
theology.  Even  the  oceanic  power  and  territorial  expansion 
of  England,  which  began  with  the  voyages  of  Drake  and  the 
foundation  of  the  Virginia  Company  and  of  the  East  India 
Company,  did  not  affect  either  the  law  or  the  institutions 
of  the  country.  The  establishment  of  distant  settlements 
was  largely  the  result  of  the  growing  force  of  commercial 
enterprise,  in  which  there  was  at  first  very  little  of  political 
ambition,  though  it  cordially  lent  itself  to  a  political  antag- 
onism first  to  Spain  and  then  to  France. 

With  the  time  of  the  Great  Civil  War  we  return  to  an  era 
in  which,  though  religion  and  commerce  continue  to  be  potent 
forces,  the  first  place  must  again  be  assigned  to  political 


10.     BRYCE:    ROME    AND    ENGLAND       351 

causes.  The  struggle  which  overthrew  the  old  monarchy 
effected  two  things.  It  extinguished  the  claims  of  the  Crown 
to  a  concurrent  legislative  or  quasi-legislative  power.  The 
two  Houses  of  Parliament  were  established  as  an  engine  for 
effecting  legal  changes,  prompt  in  action  and  irresistible  in 
strength.1  Towards  this  England  had  long  been  slowly 
tending,  as  during  a  century  before  Augustus  Rome  slowly 
tended  to  a  monarchy.  The  work  was  completed  at  the  Boyne 
and  Aughrim,  but  the  decisive  blow  was  struck  at  Naseby. 
And,  secondly,  it  occasioned  the  accomplishment  of  several 
broad  and  sweeping  reforms  in  institutions  as  well  as  in  law 
proper.  A  Parliamentary  Union  of  England,  Scotland  and 
Ireland  was  effected  which,  though  annulled  by  the  Restora- 
tion, was  a  significant  anticipation  of  what  the  following 
century  was  to  bring.  The  old  system  of  feudal  tenure  and 
the  relics  of  feudal  finance  were  abolished.  New  provisions 
were  made,  and  old  ones  confirmed  and  extended,  for  the  pro- 
tection of  the  freedom  of  the  subject  in  person  and  estate. 
Commercial  transactions  were  regulated,  perhaps  embar- 
rassed, by  a  famous  enactment  (the  Statute  of  Frauds) 
regarding  the  evidence  required  to  prove  a  contract.  Such 
of  these  things  as  lay  outside  the  purely  political  sphere  were 
due  partly  to  the  development  of  industry  and  commerce, 
which  had  gone  on  apace  during  the  reign  of  James  I,  and 
was  resumed  during  the  government  of  Cromwell  and  Charles 
II,  partly  to  that  sense  which  political  revolutions  bring  with 
them,  that  the  time  has  come  for  using  the  impulse  of  liber- 
ated forces  to  effect  forthwith  changes  which  had  for  a  long 
time  before  been  in  the  air.  On  a  still  larger  scale,  it  was  the 
Revolution  and  Empire  in  France  that  led  to  the  remodelling 
of  French  institutions  and  the  enactment  of  "Napoleon's 
Codes.  2 

As  usually  happens,  an  era  of  abnormal  activity  in  recast- 
ing institutions  and  in  amending  the  law  was  followed  by  one 
of  comparative  quiescence.  It  was  not  till  the  middle  of  the 

1  As   Milton   says :  — 

"  And  that  two-handed  engine  at  the  door 

Stands  ready  to  strike  once  and  strike  no  more." 

*  Although  the  Napoleonic  government  was  in  many  things  only 
completing  work  begun  under  Lewis  the  Fourteenth. 


352    //.     FROM    THE    1100'S    TO    THE    1800'S 

reign  of  George  III  that  the  beginnings  of  a  new  period  of 
transition  were  apparent,  not  till  after  the  Reform  Bill  of 
1832  that  the  largest  among  the  many  reforms  towards 
which  men's  minds  had  been  ripening  were  effected.  These 
reforms,  which  have  occupied  the  last  sixty-seven  years, 
have  touched  every  branch  of  law.  They  include  a  great 
mitigation  of  the  old  severity  of  the  criminal  law  and  the 
introduction  of  provisions  for  repressing  those  new  offences 
which  are  incident  to  what  is  called  the  progress  of  society. 
They  have  expunged  the  old  technicalities  .of  pleading 
by  which  justice  was  so  often  defeated.  They  have  striven 
to  simplify  legal  procedure,  though  they  have  not  suc- 
ceeded in  cheapening  it,  and  have  fused  the  ancient  Courts 
of  Common  Law  with  those  of  Equity.  They  have  removed 
religious  disqualifications  on  the  holding  of  offices  and  the 
exercise  of  the  suffrage.  They  have  dealt  with  a  long  se- 
ries of  commercial  problems,  and  have  in  particular  made 
easy  the  creation"  of  corporations  for  business  and  other 
purposes,  given  limited  liability  to  their  members,  and  laid 
down  many  regulations  for  their  management.  They  have 
altered  the  law  of  the  land,  enlarging  the  powers  of  life 
owners,  and  rendering  it  easier  to  break  entails.  They 
have  reorganized  the  fiscal  system,  simplified  the  customs 
duties,  and  established  a  tariff  levied  for  revenue  only. 
They  have  codified  the  law,  mainly  customary  in  its  origin, 
relating  to  such  topics  as  'negotiable  instruments,  sale  and 
partnership.  They  have  created  an  immense  body  of  ad- 
ministrative law,  extending  and  regulating  the  powers  of 
various  branches  of  the  central  government,  and,  while  re- 
modelling municipal  government,  have  created  new  systems 
of  rural  local  government.  As  regards  the  central  institu- 
tions of  the  country,  several  new  departments  of  State  have 
been  called  into  being.  Ecclesiastical  property  has  been 
boldly  handled,  though  not  (except  in  Ireland)  diverted  to 
secular  uses ;  a  new  Court  of  Appeal  for  causes  coming  from 
the  extra-Britannic  dominions  of  the  Crown  has  been  set  up, 
and  the  electoral  franchise  has  been  repeatedly  extended. 

These  immense  changes  have  been  due  to  three  influences. 
The  first  was  the  general  enlightment  of  mind  due  to  the  play 


10.     BRYCE:    ROME    AND    ENGLAND        353 

of  speculative  thought  upon  practical  questions  which  marked 
the  end  of  last  and  the  beginning  of  this  century,  and  of 
which  the  most  conspicuous  apostles  were  Adam  Smith  in  the 
sphere  of  economics  and  Jeremy  Bentham  in  the  sphere  of 
legal  reform.  The  second  was  the  rapid  extension  of  manu- 
facturing industry  and  commerce,  itself  largely  due  to  the 
progress  of  physical  science,  which  has  placed  new  resources 
at  the  command  of  man  both  for  the  production  and  for  the 
transportation  of  commodities.  The  third  influence  was  po- 
litical, and  was  itself  in  large  measure  the  result  of  the  other 
two,  for  it  was  the  combination  of  industrial  growth  with  in- 
tellectual emancipation  that  produced  the  transfer  of  political 
power  and  democratization  of  institutions  which  went  on 
from  the  Roman  Catholic  Emancipation  Act  of  1829  to  the 
Local  Government  Act  of  1894.  Could  we  imagine  this  in- 
dustrial and  intellectual  development  to  have  failed  to  work 
on  political  institutions  as  it  in  fact  did  work,  it  would  hardly 
the  less  have  told  upon  administration  and^  upon  private  law, 
for  the  new  needs  would  under  any  form  of  government,  even 
under  an  oligarchy  like  that  of  George  IPs  time,  have  given 
birth  to  new  measures  fitted  to  deal  with  them.  The  legisla- 
tion relating  to  Joint  Stock  Companies  (beginning  with  the 
Winding-Up  Acts),  which  filled  so  important  a  place  in  the 
English  Statute-book  from  1830  to  1862,  and  which  still 
continues,  though  in  a  reduced  stream,  would  under  any 
political  conditions  have  been  required  owing  to  the  growth 
of  commerce,  the  making  of  railways,  the  increased  need  for 
the  provision  of  water,  gas  and  drainage.  And  there  went 
on,  hand  and  hand  with  it,  an  equally  needed  development  by 
the  Courts  of  Equity  of  the  law  of  partnership,  of  agency 
and  of  trusts,  as  applied  to  commercial  undertakings.  What 
the  political  changes  actually  did  was  to  provide  a  powerful 
stimulus  to  reform,  and  an  effective  instrument  for  reform, 
while  reducing  that  general  distaste  for  novelties  which  had 
been'so  strong  in  the  first  half  of  the  eighteenth  century. 

If  we  now  review  the  general  course  of  changes  in  institu- 
tions and  law  in  the  two  States  selected  for  comparison  we 
shall  be  struck  by  two  points  of  difference. 


354    //.     FROM    THE   1100'S    TO    THE    1800'S 

V.     Some  Differences  between  the  Development  of  Roman 
and  that  of  English  Law 

The  branch  of  private  law  which  is  most  intimately  con- 
nected with  the  social  and  economic  habits  of  a  nation,  and 
which,  through  social  and  economic  habits,  most  affects  its 
character,  is  that  branch  which  touches  Property,  and  the 
connexion  of  property  with  the  Family.  The  particular  form 
which  the  institutions  relating  to  property,  especially  immov- 
able property,  take,  tells  upon  the  whole  structure  of  society, 
especially  in  the  earlier  stages  of  national  growth.  The  rules, 
for  instance,  which  govern  the  power  of  an  owner  to  dispose 
of  his  property  during  his  life  or  by  will,  and  those  which 
determine  the  capacity  of  his  wife  and  children  to  acquire 
for  themselves  by  labour  or  through  gift,  and  to  claim  a 
share  in  his  estate  at  his  decease  if  he  dies  intestate,  or  even 
against  his  last  will  —  these  rules  touch  the  richer  and  middle 
classes  in  a  community  and  affect  their  life.  So  one  may 
perhaps  say  that  the  development  of  this  branch  of  law  comes 
nearer  than  any  other  to  being  the  central  line  of  legal  devel- 
opment, bearing  in  mind  that  it  is  the  needs  and  wishes  of  the 
richer  and  middle  classes  which  guide  the  course  of  legal 
change.  Here,  however,  we  discover  an  interesting  point  of 
comparison  between  Roman  and  English  legal  history. 

At  Rome  it  is  the  history  of  the  Family,  especially  as  taken 
on  its  economic  or  pecuniary  side,  the  most  important  part 
of  which  is  the  Law  of  Inheritance,  that  plays  the  largest 
part.  The  old  rules,  which  held  the  Family  together,  and 
vested  in  the  father  the  control  of  family  property,  wepe  at 
first  stringent.  From  the  third  century  B.  c.  onwards  they 
began  to  be  modified,  but  they  were  so  closely  bound  up  with 
the  ideas  and  habits  of  the  people  that  they  yielded  very 
slowly,  and  it  was  not  till  the  bold  hand  of  Justinian  swept 
away  nearly  all  that  remained  of  the  ancient  rules  of  succes- 
sion, and  put  a  plain  and  logical  system  in  their  place,  that 
the  process  was  complete. 

In  England,  on  the  other  hand,  it  is  the  Law  of  Land  that 
is  the  most  salient  feature  in  the  economi co-legal  system  of 
the  Middle  Ages.  Among  the  Teutons  the  Family  had  not 


10.     BRYCE:    ROME    AND    ENGLAND        355 

been,  within  historic  times  at  least,  a  group  closely  bound  to- 
gether as  it  was  among  the  Italians,  whereas  the  historical 
and  political  conditions  of  the  eleventh  and  twelfth  centuries 
had  in  Western  Europe  made  landholding  the  basis  of  nearly 
all  social  and  economic  relations.  Hence  the  land  customs 
then  formed  took  a  grip  of  the  nation  so  tight  that  ages  were 
needed  to  unloose  it.  The  process  may  be  said  to  have  begun 
with  a  famous  statute  (Quia  Emptores)  in  the  reign  of 'Ed- 
ward I.  Its  slow  advance  was  quickened  in  the  seventeenth 
century  by  political  revolution;  and  the  Act  of  1660  which 
abolished  knight  service  recorded  a  great  change.  The  peace- 
ful revolution  of  1832  gave  birth  to  the  series  of  statutes 
which  from  1834  down  to  our  own  day  have  been  reshaping 
the  ancient  land  system,  but  reshaping  it  in  a  more  piece- 
meal and  perplexing  fashion  than  that  in  which  Justinian  re- 
formed the  law  of  succession  by  the  118th  and  127th  Novels. 
Problems  connected  with  lartdholding  still  remain  in  England, 
as  they  do  in  nearly  all  States,  especially  where  population 
is  dense;  but  they  differ  from  the  old  problems,  and  though 
disputes  relating  to  the  taxation  of  land  give  trouble,  and  may 
give  still  more  trouble,  questions  of  tenure  have  lost  the 
special  importance  which  made  them  once  so  prominent  in 
our  legal  history. 

Both  Rome  and  England  have  been,  far  beyond  any  other 
countries  except  Russia,  expanding  States.  Rome  the  City 
became  Rome  the  World-State.  The  Folk  of  the  West  Saxons 
went  on  growing  till  it  brought  first  the  other  kingdoms  of 
South  Britain,  Teutonic  and  Celtic,  then  the  adjoining  isles 
of  Ireland  and  Man,  then  a  large  part  of  North  America, 
then  countless  regions  far  away  over  the  oceans  under  the 
headship  of  the  descendants  of  Cerdic  and  Alfred.  But  in  the 
case  of  Rome  this  expansion  by  conquest  was  the  ruling 
factor  in  political  and  legal  evolution,  the  determining  influ- 
ence by  which  institutions  were  transformed.  In  England, 
on  the  other  hand,  it  is  the  relations  of  classes  that  have  been 
the  most  active  agency  in  inducing  political  change,  and  the 
successive  additions  of  territory  have  exerted  a  secondary  in- 
fluence on  institutions  and  an  insignificant  influence  on  law. 
Not  only  has  English  law  been  far  less  affected  (save  at  the 


356    //.     FROM    THE    1100'S    TO    THE    1800'S 

first  two  of  the  five  epochs  above  described)  by  foreign  law  or 
foreign  thought  than  Rome  was,  but  the  increase  of  England 
by  the  union,  first  of  Scotland  and  then  Ireland,  and  by  the 
acquisition  of  transoceanic  dominions,  has  not  interrupted 
the  purely  insular  or  national  development  of  English  law. 
The  conquest  of  Ireland,  which  began  in  the  twelfth  century 
but  was  not  completed  till  the  seventeenth,  made  no  difference, 
because  Ireland,  always  since  the  twelfth  century  far  behind 
England  in  material  progress  and  settled  social  order,  re- 
ceived a  separate  civil  administration  with  separate  Courts. 
As  these  Courts  administered  English  law,  they  followed  in 
the  path  which  England  had  already  travelled  and  did  not 
affect  the  progress  of  law  in  England.  Nothing  speaks  more 
of  the  long-continued  antagonism  of  the  Teutonic  and  the 
Celtic  elements  in  Ireland,  and  of  the  dominance  of  the  Teu- 
tonic minority  over  the  Celtic  majority,  than  the  practical 
identity  of  the  common  law  in  'the  two  countries,  and  the 
total  absence  of  any  Celtic  customs  in  that  law.  The  few  and 
comparatively  slight  differences  which  exist  to-day  between 
the  law  of  England  and  that  of  Ireland  are  all  due  to  statute. 
One  is  the  absence  of  judicial  divorce  in  Ireland,  which  an 
Act  passed  so  recently  as  1857  introduced  in  England.  The 
second  is  to  be  found  in  the  law  relating  to  land,  largely 
altered  by  statutes  passed  for  Ireland  by  the  British  Parlia- 
ment of  our  own  time.  The  third  is  the  existence  in  Ireland 
of  what  are  admitted  to  be  exceptional  and  supposed  to  be 
temporary  penal  provisions,  the  last  of  which  is  the  Preven- 
tion of  Crime  Act  of  1887.  As  regards  Scotland,  when  her 
king  became  king  of  England,  and  when,  a  century  later, 
her  Parliament  was  united  with  that  of  England,  she  retained 
her  own  law  intact.  In  some  few  respects  her  law,  founded 
on  that  of  Rome,  and  her  system  of  judicial  administration 
are  better  than  those  of  England,  nor  has  she  failed  to  con- 
tribute distinguished  figures  to  the  English  bench  and  bar; 
but,  as  she  stands  far  below  England  in  population  and 
wealth,  she  has  affected  the  law  of  the  larger  country  as 
little  as  the  attraction  of  the  moon  affects  the  solid  crust  of 
the  Earth. 

The  vaster  territorial  expansion  of  the  eighteenth  and  nine- 


10.     BRYCE:    ROME    AND    ENGLAND        357 

teenth  centuries  has  told  quite  as  little  on  the  law  of  England 
as  did  the  unions  with  Scotland  and  Ireland.  When  the  Eng- 
lish began  to  people  what  are  now  the  self-governing  colonies, 
and  when  India  came  under  British  sway,  English  law  was  too 
fully  developed  to  be  susceptible  to  influences  from  them,  not 
to  add  that  they  were  too  distant  to  make  any  assimilation 
either  desirable  or  possible.  Had  India  lain  no  further  from 
England  than  Sicily  and  the  Greek  cities  lay  from  Rome,  had 
she  been  as  near  the  level  of  English  civilization  as  those  coun- 
tries were  to  that  of  Roman  civilization,  and  had  she  been 
conquered  in  the  reign  of  Elizabeth  instead  of  in  the  reign 
of  George  III,  the  history  of  English  institutions  and  Eng- 
lish law  must  have  been  wholly  unlike  what  it  has  in  fact  -been. 
These  three  differences  measure  the  gulf  which  separates  the 
course  of  English  from  that  of  Roman  development. 

Another  salient  point  in  which  the  two  States  may  be  com- 
pared relates  to  the  smaller  part  which  purely  political  as 
compared  with  economic  and  intellectual  changes  have  played 
in  the  development  of  English  laws  and  institutions.  Al- 
though there  is  a  sense  in  Which  every  political  change  may 
be  described  as  the  result  of  an  economic  or  intellectual 
change,  or  of  both  taken  together,  still  it  is  true  that  at  Rome 
the  desire  to  grasp  political  power  counted  for  more  in  the 
march  of  events  than  it  has  done  in  England. 

Economic  changes  sometimes  operate  on  politics  by  raising 
the  material  condition  of  the  humbler  class  and  thereby  dis- 
posing and  enabling  them  to  claim  a  larger  share  of  political 
power.  This  happened  at  Rome  more  frequently  in  the  earlier 
than  in  the  later  days  of  the  Republic.  In  England  it  has 
happened  more  in  later  times  than  it  did  in  earlier.  Some- 
times, however,  economic  causes  so  depress  the  poor  that  their 
misery  becomes  acute  or  their  envy  intense,  whence  it  befalls 
that  they  break  out  into  revolt  against  the  rich.  This 
was  on  the  point  of  happening  more  than  once  at  Rome, 
but  has  been  no  serious  danger  in  England  since  the  days  of 
Richard  II.  Sometimes,  again,  the  growth  of  immense  for- 
tunes and  the  opportunities  of  gaining  wealth  through  poli- 
tics threaten  the  working  of  popular  institutions.  This  oc- 
curred at  Rome;  and  was  one  of  the  causes  which  brought 


358    //.     FROM    THE   1100'S    TO    THE    1800'S 

the  Republic  to  its  death.  It  is  a  peril  against  which  Eng- 
land has  had,  and  may  again  have,  to  take  precautions. 

Changes  in  thought  and  belief  operate  on  politics  either 
by  weakening  the  deferential  and  submissive  habits  of  the 
classes  which  have  been  excluded  from  power  so  that  they 
insist  on  having  their  fair  share  of  it,  or  by  implanting  in 
the  minds  of  the  middle  and  upper  classes  new  ideas  which 
grow  strong  enough  to  make  them  insist  on  bringing  old- 
fashioned  practice  into  accord  with  new  and  more  enlightened 
theory.  It  was  the  concurrence  of  these  two  forms  of 
intellectual  change  that  gave  its  specially  destructive  char- 
acter to  the  French  Revolution.  Ideas  of  course  act  most 
quickly  and  powerfully  when  they  are  such  as  rouse  emotion, 
for  that  which  remains  a  mere  intellectual  concept  or 
speculative  opinion  is  not  a  thing  to  stir  or  to  shake 
established  institutions.  The  best  illustration  is  to  be  found 
in  religious  beliefs.  But  the  notion  of  Equality  —  that  is 
to  say,  the  notion  that  rights  vested  in  every  man  as  a 
man  demand  that  every  man  shall  be  treated  alike  —  has 
also  proved  an  energetic  explosive.  Influences  of  this  kind 
counted  for  little  at  Rome.  Neither  have  they,  except  in 
the  form  of  religious  beliefs,  or  when  their  force  coincided 
with  that  exerted  by  religious  convictions,  become  the  source 
of  strife  or  constitutional  change  in  England. 

One  may  indeed  say  that  the  course  of  England's  political 
development  has  been  less  interrupted  by  convulsions  than 
that  of  any  other  great  State,  for  even  the  scars  made  by 
the  Civil  War  were  before  long  healed,  so  that  hardly  any 
of  the  old  institutions  perished,  though  some  of  them  passed 
into  new  phases.  The  new  buildings  which  popular  govern- 
ment has  within  the  present  century  added  to  the  old  edifice 
are  built  out  of  the  same  kind  of  stone,  and  (if  one  may 
venture  to  pursue  the  metaphor)  weather  to  the  same  colour. 
So  the  growth  of  our  law,  both  public  and  private,  both 
criminal  and  civil,  has  »been  a  gradual  and  quiet  growth, 
due  in  the  main  to  the  steady  increase  in  the  magnitude  and 
complexity  of  the  industrial  and  commercial  relations  of  life, 
which  have  made  the  law  expand  and  improve  at  the  bidding 
of  practical  needs.  Where  politics  have  affected  the  law, 


10.    BRYCE:   ROME   AND   ENGLAND       359 

this  has  been  through  the  rise  of  the  humbler  classes,  a 
rise  largely  due  to  economic  causes.  So  likewise  the  influence 
of  ideas,  of  new  views  as  to  what  law  should  be  and  how 
it  should  serve  the  community,  has  been  marked  by  few 
sudden  crises,  tand  has  been  ruled  by  practical  good  sense 
rather  than  by  aspirations  after  a  theoretical  perfection.  As 
regards  private  law,  this  remark  applies  to  the  Romans  also, 
although  the  constant  strain  placed  upon  their  institutions 
by  their  territorial  expansion  as  well  as  the  differences  be- 
tween a  City  State  and  a  large  rural  State  exposed  their 
political  system  to  more  frequent  shocks  and  ultimately  to 
a  more  radical  transformation. 

Finally,  it  may  be  observed  that  the  interest  felt  in  law, 
and  the  amount  of  intellectual  effort  given  to  its  development, 
was  probably  greater  among  the  educated  class  in  Rome 
than  it  has  ever  been  in  any  large  section  of  the  English 
people.  Romans  of  intellectual  tastes  had  fewer  things  to 
think  about,  fewer  sub j  ects  to  attract  or  to.  distract  them, 
than  the  English  have  had.  Law  was  closely  interwoven  with 
public  life.  Country  life  and  country  sports,  commerce, 
religion,  travel  and  adventure,  covered  less  of  the  mental 
horizon  than  these  pursuits  have  covered  to  Englishmen  of 
the  upper  or  educated  class,  so  that  more  of  thought  and  time 
was  left  to  be  devoted  to  law.  Nor  were  many  Romans 
carried  off  into  other  regions,  like  the  Greeks,  by  the  love  of 
art,  or  of  music,  or  of  abstract  speculation. 

From  this  reflection  another  arises,  viz.  that  legal  and 
constitutional  studies,  as  a  subject  for  research  and  thought, 
find  the  competition  of  other  subjects  more  severe  in  Eng- 
land to-day  than  they  did  in  the  eighteenth  century.1  His- 
torical inquiries,  economic  inquiries,  and,  to  a  still  larger 
extent,  inquiries  in  the  realm  of  Nature,  claim  a  far  larger 
share  in  the  interest  of  eager  and  active  minds  now  than  in 
the  days  of  Hobbes  or  Locke  or  Bentham.  They  have  done 
much  to  extrude  law  from  the  place  it  once  held  among 
subjects  of  interest  to  unprofessional  persons.  This  is  true 
all  over  the  world;  but  legal  topics,  whether  constitutional 
or  belonging  to  the  sphere 'of  penal  or  administrative,  or  in- 
1 1  owe  this  observation  to  my  friend  Mr.  Dicey. 


360    //.     FROM    THE   1100'S   TO    THE    1800'S 

ternational  or  ordinary  private  law,  seem  now  to  claim  even 
fewer  votaries  in  England  than  they  do  in  France  or  Ger- 
many, and  certainly  fewer  than  they  do  in  the  United  States. 

VI.     Observations  on  France  and  Germany 

The  sketch  which  I  have  sought  to  draw  of  the  rela- 
tions of  general  history  to  legal  history  might  have  been 
with  advantage  extended  to  include  the  legal  history  of  other 
States,  and  particularly  of  two  such  important  factors  in 
modern  civilization  as  France  and  Germany.  But,  apart 
from  the  undue  length  to  which  an  essay  would  stretch  if 
it  tried  to  cover  so  large  a  field,  there  is  a  good  reason  why 
we  may  deem  these  two  countries  less  well  suited  for  the  sort 
of  comparative  treatment  here  assayed.  Neither  of  them 
has  had  the  kind  of  independent  and  truly  national  legal 
development  which  belonged  to  Rome  and  belongs  to  Eng- 
land. Each  of.  them  started  on  its  career  with  a  body  of 
pre-existing  law,  made  elsewhere,  viz.  the  Roman  law  which 
had  come  down  to  France  and  to  Germany  from  antiquity. 
In  Gaul,  even  in  the  parts  most  settled  by  the  Franks,  the 
law  of  the  Empire  held  its  ground,  though  everywhere  largely 
modified  by  feudal  land  usages,  and  in  the  northern  half  of 
the  country,  when  it  had  ceased  to  be  Gaul  and  had  become 
France,  in  the  form  of  customs  and  not  of  written  Roman 
texts.  In  Germany  the  old  Teutonic  customary  law  was 
by  degrees  (except  as  regards  land  rights)  supplanted  by 
the  Corpus  luris  of  Justinian,  in  conformity  with  the  idea, 
fantastic  as  that  idea  now  appears  to  us,  which  regarded  the 
Roman  Emperors  from  Julius  Caesar  down  to  Constantine 
the  Sixth  as  the  predecessors  in  title  of  the  Saxon  and 
Franconian  Emperors.  Thus  neither  the  French  nor  the 
Germans  built  up  on  their  own  national  foundation  a  law 
distinctively  their  own.  Moreover,  both  Germany  and  France 
stand  contrasted  with  England  as  well  as  with  Rome  in  the 
fact  that  neither  country  ever  had  a  true  central  legislature 
or  central  system  of  law  courts  comparable  with  the  Parlia- 
ment and  King's  Courts  of  England.  The  German  Diet, 
though  enactments  were  occasionally  made  in  it  with  its  con- 


10.     &RYCE:    ROME    AND    ENGLAND        361 

sent  by  the  sovereign,  enactments  which  however  were  not 
universally  obeyed,  dealt  very  little  with  law  proper,  even  in 
the  days  of  its  greatest  strength.  Still  less  were  the  French 
States-General,  even  before  their  long  eclipse,  an  effective 
legislature.  Thus  the  development  of  the  law  of  both  Ger- 
many and  France  fell  mainly  into  the  hands  of  the  jurists, 
qualified  to  some  extent  in  Germany  by  the  ordinances  enacted 
by  the  electors,  landgraves,  and  other  princes,  as  well  as  by 
the  free  imperial  cities,  and  (in  later  days)  by  the  kings 
whose  dominions  formed  part  of  the  decaying  Empire,  and 
qualified  in  post-mediaeval  France  by  the  ordinances  of  the 
king.  In  both  countries  it  was  upon  the  Roman  law,  as 
modified  by  custom,  that  the  jurists  worked,  and  hence  in 
neither  did  a  body  of  law  grow  up  which  was  truly  national, 
in  the  sense  either  of  having  a  distinctive  national  quality  or 
of  embracing  the  whole  nation  or  of  having  been  enacted  by 
a  national  legislature.  The  first  complete  unity  given  to  law 
in  France  was  given  by  Napoleon.  His  Code  was  based  on 
the  Roman  law  theretofore  used,  which  had  to  a  considerable 
extent  been  already  codified  under  Lewis  XIV ;  yet  the  crea- 
tion of  one  Code  for  the  whole  country  was  a  step  so  bold  that 
it  could  hardly  have  been  attempted  except  by  an  autocrat 
and  on  the  morrow  of  a  revolution.  The  first  modern  effort 
to  give  unity  to  law  in  Germany,  itself  an  efflux  of  the  aspira- 
tion for  national  unity,  was  made  by  the  General  Bills  of 
Exchange  Law  (Wechselordnung)  (1848-1850),  while  a 
general  Commercial  Code  (Gemeines  Handelsgesetzbuch) 
enacted  in  various  States  between  1862  and  1866  was  re- 
enacted  for  the  new  Empire  in  1871.  The  fuller  unity  long 
desired  was  attained  in  1900,  when  the  new  general  Code  for 
the  whole  German  Empire  came  into  force.  This  similarity 
between  the  legal  history  of  France  and  that  of  Germany 
seems  the  more  curious  when  one  remembers  that,  so  far  as 
mere  political  unity  is  concerned,  France  attained  that  unity 
comparatively  early,  one  may  say  at  the  end  of  the  fifteenth 
century,  while  Germany  continued  down  till  the  extinction  of 
the  old  Empire  in  1806  to  go  on  losing  what  political  unity 
she  had  possessed.  It  was  not  till  1866  that  she  began  to 


362    //•    FROM    THE    1100'S    TO    THE    1800'S 

regain  it,  though  the  Customs  Union  of  the  German  States, 
formed  in  1829,  had  been  a  presage  of  what  was  coming. 

VII.    Private  Law  least  affected  by  Political  Changes  or 
Direct  Legislation 

One  phenomenon  is  common  to  the  legal  history  in  all  these 
nations.  That  part  of  the  law  which  has  the  greatest  in- 
terest for  the  scientific  student,  and  the  greatest  importance 
for  the  ordinary  citizen,  the  private  civil  law  of  family  and 
property,  of  contracts  and  torts,  has  been  the  part  least 
affected  either  by  political  changes  or  by  direct  legislation. 
It  has  been  evolved  quietly,  slowly  and  almost  imperceptibly, 
first  by  popular  custom,  then  by  the  labours  of  jurists  and 
the  practice  of  the  Courts.  Direct  legislation  by  the  supreme 
power  has  stepped  in  chiefly  to  settle  controversies  between 
conflicting  authorities,  or  to  expunge  errors  too  firmly  rooted 
for  judges  to  rectify,  or  to  embody  existing  usage  in  a 
definite  and  permanent  form.  In  the  sphere  of  private  law, 
and  even  in  that  of  criminal  law  (so  far  as  not  affected  by 
politics),  legislation  scarcely  ever  creates  any  large  new  rule, 
and  seldom  even  any  minor  rule  which  is  absolutely  new,  not 
an  enlargement  of  something  which  has  gone  before.  Pure 
legislative  novelties  mostly  turn  out  ill.  Fortunately,  the 
good  sense  of  Englishmen,  like  that  of  Romans,  has  rarely 
permitted  them  to  appear. 

The  parallel  drawn  between  the  history  of  Roman  and  that 
of  English  law  is  less  instructive  when  we  reach  the  later 
stages  of  that  history.  It  cannot  be  made  complete,  not  only 
because  we  know  comparatively  little  of  the  inner  condition 
and  practical  working  of  the  Courts  after  the  time  of  Con- 
stantine,  but  because  there  was  after  his  time  both  a  political 
and  an  intellectual  decay,  which  few  will  profess  to  discover 
in  the  England  of  this  century.  The  expansion  and  enrich- 
ment of  the  Roman  system  had  stopped  even  before  Constan- 
tine,  while  that  of  English  Law  is  still  proceeding.1  In  Eng- 

1  Within  two  centuries  after  Justinian's  time  official  abridgements 
of  his  Corpus  Juris  began  to  be  issued,  and  it  was  virtually  superseded 
in  the  end  of  the  ninth  century  by  the  Basilica  of  the  Emperor  Leo  the 


10.     BRYCE:    ROME    AND    ENGLAND        363 

land  commerce  is  still  growing,  education  is  still  advancing, 
new  and  complicated  problems  are  still  emerging,  so  that 
many  forces  continue  to  work  for  the  development  of  law. 
Though  we  cannot  foresee  what  lines  this  development  will 
follow  we  may  feel  sure  that  some  of  the  old  causes  of  change 
are  disappearing.     The  democratization  of  political  institu- 
tions seems  nearly  complete,  religious  passions  have  grown 
cold,  and  all  classes  have  been  so  fully  admitted  to  a  share  in 
political  power  that  any  such  bold  reforms  in  central  and 
local  administration,  in  procedure,  in  penal  law,  and  in  one 
or  two  departments  of  private  civil  law  as  followed  the  Reform 
Bill  of  1832,  seem  improbable.    In  some  departments  the  pos- 
sibilities of  further  progress  appear  to  be  exhausted,  though 
there  are  others,  such  as  those  concerned  with  questions  of 
the  right  of  combination  among  employers  or  among  work- 
men, and  the  character  which  motive  imparts  to  acts  in  them- 
selves lawful  on  which  the  last  word  is  far  from  having  been 
said.1    But  there  are  at  least  two  real  difficulties  which  remain 
to  be  grappled  with.    One  relates  -to  the  methods  of  legal  pro- 
ceedings.    Their  cost  is  so  great  as  to  deter  many  persons 
from  the  attempt  to  enforce  just  claims,  to  impose  a  heavy 
and  unfair  burden  upon  successful  litigants,  and  to  furnish 
opportunities  for  blackmail  (especially  in  libel  cases)  to  men 
who  are  equally  devoid  of  money  and  of  scruples.     All  efforts 
to  cheapen  them  have  so  far  failed.    The  other  problem  relates 
to  a  matter  of  substance.     What  are  the  general  principles 
to  be  followed  in  empowering  the  State  to  regulate  the  con- 
duct of  individuals  or  groups  of  individuals,  in  permitting 
the  central  government  or  a  local  authority  to  compete  with 
individuals  in  industrial  enterprises   and  in   restricting  the 
power  of  combinations  formed  for  commercial  or  industrial 
objects?     This  group  of  problems  are  being  daily  pressed  to 
the  front  by  political  forces  on  the  one  hand  and  by  industrial 
progress  on  the  other.     They  are  as  urgent  in  the  United 
States  as  in  Britain.     Nor  are  they  matters  for  legislation 

Philosopher.  The  action  of  his  successors  was  largely  directed  to  cut- 
ting down  the  old  law  into  a  shape  better  fitted  for  the  changed  condi- 
tions of  the  Empire,  and  the  declining  intelligence  of  the  people. 

1  The  interest  excited  by  cases  such  as  those  of  the  Mogul  Steamship 
Company  v.   Macgregor  and  Allen  v.   Flood  illustrates   this.  . 


364    //.     FROM    THE    1100'S    TO    THE    1800'S 

only,  for  cases  frequently  arise  which  the  best  legislation  can- 
not count  upon  having  provided  for,  and  which  it  needs  not 
only  technical  skill  but  also  a  philosophic  grasp  of  principles 
on  the  part  of  the  bar  and  bench  to  conduct  to  a  solution. 
The  experience  of  the  ancient  world  and  that  of  the  Middle 
Ages  throws  little  light  upon  them.  But  as  they  have  ap- 
peared simultaneously  in  many  modern  nations,  each  may 
have  something  to  learn  from  the  others.  Comparative  juris- 
prudence has  no  more  interesting  field  than  this :  nor  is  there 
any  task  in  labouring  on  which  an  enlightened  mind  may  find 
a  wider  scope  for  the  devotion  of  learning  and  thought  to 
the  service  of  the  community. 

I  am  tempted  to  venture  on  some  other  predictions  as  to 
the  influences  that  may  be  expected  to  work  on  the  legal 
changes  of  the  coming  century.  But  we  have  been  pursuing 
an  historical,  not  a  speculative,  inquiry,  and  it  will  be  enough 
to  suggest  that  industry  and  commerce,  as  quickened  by  the 
progress  of  physical  science,  are  likely  to  be  factors  of  in- 
creasing power,  and  that  the  purely  political  element  in  the 
development  of  law  will  count  for  less  than  that  contributed 
by  the  effort  to  readjust  social  conditions  and  to  give  effect 
to  social  aspirations. 


PART   III. 

THE    AMERICAN    COLONIAL    PERIOD 

11.  English  Common  Law  in  the  Early  American  Colonies. 

PAUL  SAMUEL  REINSCH. 

12.  The  Extension  of  English  Statutes  to  the  Plantations. 

ST.  G-EORGE  LEAKIN  SIOUSSAT. 

13.  The  Influence  of  Colonial  Conditions,  as  Illustrated  in 

the  Connecticut  Intestacy  Law. 

CHARLES  McLEAN  ANDREWS. 


305 


[OTHER  REFERENCES  ON  THIS  PERIOD.    The  following  essays  also  deal 
with  this  period: 
In  Select  Essays: 
Courts  of  Chancery  in  Colonial  America,  by  Solon  D.  Wilson:  Volume 

Equity  through  Common  Law  Forms  in  Pennsylvania,  by  Sidney  G. 
Fisher:  Volume  II. 

Private  Corporations  in  the  Colonies,  by  Simeon  E.  Baldwin:  Vol- 
ume III. 

In  other  Collections  and  Periodicals: 

Colonial  Landholding  in  North  Carolina,  by  J.  S.  Bassett:  Law  Quar- 
terly Review,  XI,  154. 

Judicial  Action  by  the  Provincial  Legislature  of  Massachusetts,  by 
M.  M.  Bigelow:    Columbia  Law  Review,  II,  536. 

The  Adoption  of  the   Common  Law  by  the   American   Colonies,  by 
R.  S.  Dale:    American  Law  Register,  N.  S.,  XXI,  553. 

The  History  of  Equity  in  the  American  Colonies  and  States,  by  E.  B. 
Gager:    in  Two  Centuries'  Growth  of  American  Law   (1901),  p.  129. 

The  History  of  the  Law  of  Municipal  Corporations  in  the  Colonies 
and  the  States,  by  H.  W.  Rogers:    ibid.  p.  202. 

Courts  of  Justice  in  the  Province  of  Massachusetts  Bay,  by  T.  L. 
Phillips:  American  Law  Review,  XXXIV,  566. 

A  Chapter  in  the  Legal  History  of  Massachusetts,  by  J.  B.  Thayer: 
Harvard  Law  Review,  IX,  1. 

The  History  of  the  Land  and  Judicial  Systems  in  Pennsylvania,  by 
W.  R.  Shepherd:   Columbia  Studies  in  History,  VI,  pp.  1,  370. 

The  History  of  Chancery  in  Massachusetts,  by  E.  H.  Woodruff:   Law 
Quarterly  Review,  V,  370. 

Roger  Ludlow,  the  Colonial  Lawmaker,  by  J.  M.  Taylor  (1900). 

Justice  in  Colonial  Virginia,  by  O.  P.  Chitwood  -(Johns  Hopkins  Uni- 
versity Studies  in  History  and  Political  Science,  ser.  XXIII). 

The  Origin  of  the  System  of  Recording  Deeds  in  America,  by  J.  H. 
Beale,  Jr.:  Green  Bag,  XIX,  335.] 


36t> 


11.    THE  ENGLISH  COMMON  LAW  IN  THE  EARLY 
AMERICAN  COLONIES1 

BY  PAUL  SAMUEL  REINSCHZ 
Introduction 

WHEN  American  legal  history  comes  to  be  studied  more 
thoroughly,  it  will  perhaps  be  found  that  no  country 
presents,  in  the  short  space  of  three  centuries,  such  a  variety 
of  interesting  phenomena.  An  old  nation,  marked  for  a 
sturdy  sense  of  right,  sends  colonies  into  a  wilderness ;  they 
form  rude-  institutions,  often  suggesting  early  European 
experience,  to  govern  their  simple  social  relations.  As  this 
society  grows  more  intricate  and  more  highly  organized,  the 
legal  institutions  of  the  mother  country  are  gradually  intro- 
duced, until  a  large  portion  of  the  common  law  is  trans- 
ferred to  the  actual  practice  of  the  colonies.  Their  law, 
however,  always  retained  the  impress  of  the  earlier  origi- 
nality, when  new  conditions  brought  forth  new  institutions 
and  new  legal  ideas.  The  struggles  with  the  mother  country 
caused  a  wide  spread  of  legal  knowledge,  and  the  common 
law  came  to  be  revered  as  a  muniment  of  personal  liberties. 
Blackstone  was  outdone  by  American  lawyers  in  extravagant 
panegyrics.  It  is  only  when  the  rationalizing  tendencies  of 
French  democracy  become  triumphant  in  America,  that  the 

1  This  essay  was  first  published  in  1899,  at  Madison,  in  the  Bulletin 
of  the  University  of  Wisconsin,  Vol.  II. 

2  Professor  of  Political  Science  in  the  University  of  Wisconsin  since 
1901.     A.  B.,  LL.  D.,  and  Ph.  D.,  University  of  Wisconsin;  Associate 
Editor  of  the  American  Political  Science  Review ;  Delegate  of  the  United 
States  to  the  Third  International  Conference  of  American  Republics  at 
Rio  de  Janeiro,  1906. 

Other  Publications:  World  Politics  at  the  End  of  the  Nineteenth 
Century,  1900;  Colonial  Government,  1902;  Colonial  Administration, 
1905;  American  Legislation  and  Legislative  Methods,  1907;  International 
Unions  and  their  Administration,  1907. 

367 


368  ///•     THE   COLONIAL   PERIOD 

value  of  the  common  law  is  openly  and  bitterly  attacked. 
Then  conies  the  great  reforming  and  codifying  movement  of 
this  century,  in  which  New  York  is  the  leading  state.  Uncon- 
scious development  of  custom,  reversal  to  simpler  forms, 
adaptation  and  modification  of  a  technical  system  brought 
from  abroad,  conscious  reform,  and,  finally,  the  effort  to 
cast  all  legal  relations  into  a  simple  and  lucid  system, 
—  all  these  phenomena  can  be  traced  in  our  law,  and 
nowhere  can  the  interaction  of  popular  consciousness  of 
right  with  legal  institutions  be  more  fully  and  clearly  ascer- 
tained. 

The  first  question  that  confronts  the  investigator  con- 
cerns the  influence  upon  our  system  of  the  English  common 
law,  that  complex  body  of  principles  and  rules,  contained, 
at  our  early  colonial  period,  in  the  Year  Books,  Reports,  and 
the  standard  law  treatises  of  quasi- judicial  authority.  Stat- 
utory law-making  had  been  but  sparingly  used  up  to  this 
time  in  England,  and  the  law  of  property  and  personal 
security,  criminal  law,  and  procedure,  found  their  norms  in 
a  long  series  of  judicial  precedents.  The  transfer  of  this 
system  to  the  colonies,  its  amalgamation  with  new  forms 
there  originated,  its  adaptation  to  novel  conditions,  consti- 
tutes a  subject  of  rare  interest. 

The  accepted  legal  theory  of  this  transfer  is  well  known. 
It  is  clearly  stated  by  Story  in  Van  Ness  v.  Packard,  2 
Peters,  144:  "The  common  law  of  England  is  not  to  be 
taken  in  all  respects  to  be  that  of  America.  Our  ancestors 
brought  with  them  its  general  principles,  and  claimed  it  as 
their  birth-right;  but  they  brought  with  them  and  adopted 
only  that  portion  which  was  applicable  to  their  condition." 
This  theory  is  universally  adopted  by  our  courts,  and  it  has 
given  them  the  important  power  of  judging  of  the  applica- 
bility of  the  principles  of  the  common  law  to  American  con- 
ditions. According  to  this  view,  the  common  law  was  from 
the  first  looked  upon  by  the  colonists  as  a  system  of  positive 
and  subsidiary  law,  applying  where  not  replaced  by  colonial 
enactments  or  by  special  custom  suited  to  the  new  condi- 
tions. 

While  this  legal  theory  has  obtained  acceptance  as  a  satis- 


11.     REINSCH:  COLONIAL  COMMON  LAW   369 

factory  explanation  of  the  jurisprudence  of*  to-day,  it  is 
not  complete  enough  to  afford  an  adequate  synthesis  of 
colonial  legal  facts  for  the  historian.  It  contains,  of  course, 
the  great  truth  that  men  cannot  all  at  once  cut  themselves 
loose  from  a  system  of  thought  or  action  under  which  they 
have  lived;  that,  though  they  transfer  themselves  entirely 
to  new  conditions,  their  notions  and  institutions  must  neces- 
sarily be  circumstanced  and  colored  by  their  former  experi- 
ence. Thus,  of  course,  the  more  simple,  popular,  general 
parts  of  the  English  common  law  were  from  the  first  of 
great  influence  on  colonial  legal  relations.  This  is,  however, 
very  far  from  declaring  the  common  law  of  England  a 
subsidiary  system  in  actual  force  from  the  beginning  of 
colonization.  On  the  contrary,  we  find  from  the  very  first, 
originality  in  legal  conceptions,  departing  widely  from  the 
most  settled  theories  of  the  common  law,  and  even  a  total 
denial  of  the  subsidiary  character  of  English  jurisprudence. 
The  first  problem  to  be  determined  is  therefore  this:  What 
was  the  attitude  of  the  earliest  colonists  towards  the  common 
law  as  a  subsidiary  system?  To  the  solution  of  this  question 
this  thesis  addresses  itself. 

The  earliest  settlers  in  many  of  the  colonies  made  bodies 
of  law,  which,  from  every  indication,  they  considered  a  com- 
plete statement  of  the  needful  legal  regulations.  Their  civil- 
ization being  primitive,  a  brief  code  concerning  crimes, 
torts,  and  the  simplest  contracts,  in  many  ways  like  the 
dooms  of  the  Anglo-Saxon  kings,  would  be  sufficient.  Not 
only  did  these  codes  innovate  upon,  and  depart  from, 
the  models  of  common  law,  but,  in  matters  not  fixed  by 
such  codes,  there  was  in  the  earliest  times  no  reference  to 
that  system.  They  were  left  to  the  discretion  of  the  magis- 
trates. 

In  many  cases  the  colonists  expressed  an  adhesion  to  the 
common  law,  but,  when  we  investigate  the  actual  administra- 
tion of  justice,  we  find  that  usually  it  was  of  a  rude,  popular, 
summary  kind,  in  which  the  refined  distinctions,  the  artificial 
developments  of  the  older  system  have  no  place.  A  technical 
system  can,  of  course,  be  administered  only  with  the  aid  of 
trained  lawyers.  But  these  were  generally  not  found  in  the 


la 
d 


370  ///.     THE   COLONIAL   PERIOD 

colonies  during  the  17th  century,  and  even  far  down  into  the 
18th  we  shall  find  that  the  legal  administration  was  in  the 
hands  of  laymen  in  many  of  the  provinces.  Only  as  the 
lawyers  grow  more  numerous  and  receive  a  better  training, 
o  we  find  a  general  reception  and  use  of  the  more  refined 
theories  of  the  common  law.  It  is  but  natural  that,  with 
increased  training,  the  courts  and  practitioners  should  turn 
to  the  great  reservoir  of  legal  experience  in  their  own  lan- 
guage for  guidance  and  information ;  the  courts  would  be 
more  ready  to  favor  the  theory  of  the  adoption  of  the  com- 
mon law,  as  it  increased  their  importance,  virtually  giving 
them  legislative  power.  The  foregoing  statements  are  espe- 
cially true  of  New  England,  where  the  subsidiary  force  of 
the  common  law  was  plainly  denied;  where  a  system  of 
popular  law  (Volksrecht)  grew  up;  and,  where  the  law  of 
God  took  the  place  of  a  secondary  system. 

The  legal  theory  of  the  transfer  has  its  established  place 
in  American  jurisprudence;  but,  historically,  it  should  be 
modified  so  as  to  bring  out  the  fact  that  we  had  a  period  of 
rude,  untechnical  popular  law,  followed,  as  lawyers  became 
numerous  and  the  study  of  law  prominent,  by  the  gradual 
reception  of  most  of  the  rules  of  the  English  common  law. 
In  this  way  only  shall  we  understand,  from  the  first,  the  very 
characteristic  and  far-reaching  departures  from  older  legal 
ideas  which  are  found-  in  the  New  World ;  while,  at  the  same 
time,  its  full  importance  is  assigned  to  the  influence  of  Eng- 
lish jurisprudence  in  moulding  our  legal  thought.  The 
theory  of  the  courts  is  an  incomplete,  one-sided  statement 
needing  historical  modification.  When  the  courts  come  to 
analyze  the  nature  of  the  law  actually  brought  over  by  the 
colonists  they  find  it  a  method  of  reasoning,1  "  a  system  of 
legal  logic,  rather  than  a  code  of  rules ;  "  or  the  rule,  "  live 
honestly,  hurt  nobody,  and  render  to  every  man  his  due."  2 
Such  a  very  indefinite  conception  of  the  matter  is  without 
value  historically;  on  the  basis  of  this  indefinite  notion 
there  has  been  claimed  for  the  courts  an  almost  unlimited 
power,  under  the  guise  of  selecting  the  applicable  principles 

1  Morgan  vs.  King,  30  Barbour,  13. 

'Marks  vs.  Morris,  4  Hening  and  Mumford,  463. 


11.     REINSCH:  COLONIAL  COMMON  LAW   371 

of  the  common  law,  to  establish  virtually  new  and  unprec- 
edented legal  rules.  On  the  other  hand,  a  historical  study 
will  reveal  a  most  interesting  organic  growth,  and,  after  the 
records  have  been  more  fully  published,  no  system  will  offer 
more  of  interest  to  inquiring  students  than  that  developed 
\  on  American  soil.  The  study  of  the  documents  reveals  great 
diversities  in  the  early  systems  of  colonial  laws.  Then  with 
the  growth  of  national  feeling  there  comes  also  a  growth  of 
unification  of  legal  principles,  for  which  the  English  com- 
mon law  affords  the  ideal  or  criterion.  And,  though  during 
the  decade  immediately  preceding  Independence,  the  English 
common  law  was  generally  praised  and  apparently  most 
readily  received  by  the  larger  part  of  American  courts,  still 
the  marks  of  the  old  popular  law  remain  strong  and  most 
of  the  original  features  in  American  jurisprudence  can  be 
traced  back  to  the  earliest  times. 

The  object  of  this  essay  is  to  present  the  attitude  of  the 
colonists  during  the  17th  century,  and  in  some  cases  during 
the  18th,  towards  the  common  law  of  England.  The  manner 
of  treatment  will  be  by  colonies:  the  purpose  is  to  discuss 
first  the  colonies  of  New  England  in  which  the  departure 
from  common  law  ideas  is  most  clearly  marked,  followed  by 
the  Middle  and  Southern  colonies,  many  of  which  adhered 
more  closely  to  the  Old  World  model. 

Neither  does  the  scope  of  this  essay  include,  nor  the  extent 
of  the  hitherto  published  sources  permit,  a  complete  presen- 
tation of  the  varying  systems  of  private  law  in  use  in  the 
colonies.  Very  few  of  the  colonial  court  records  have  been 
published;  in  some  cases,  as  in  Virginia  after  the  Richmond 
fire  of  1865,  most  of  them  are  unhappily  lost  forever.  A 
publication  of  characteristic  records  of  this  kind  is  a  desider- 
atum not  only  for  legal  history,  but  for  the  study  of  the 
general  economic  and  social  development.  However,  suffi- 
cient material  is  extant  in  accessible  form  to  show  the  general 
attitude  of  the  colonists  and  colonial  courts  towards  the 
common  law  as  a  technical  system. 


372  Ul.     THE   COLONIAL   PERIOD 

I.    NEW    ENGLAND 

Massachusetts 

The  ideas  of  the  Massachusetts  colonists  on  the  matter  of 
law  appear  very  clearly  from  a  resolve  of  the  general  court 1 
of  the  year  1636.  The  government  is  there  entreated  to 
make  a  draft  of  laws  "  agreeable  to  the  word  of  God  "  to 
be  the  fundamental  laws  of  the  commonwealth.  This  draft 
is  to  be  presented  to  the  next  general  court.  In  the  mean- 
time, the  magistrates  are  to  proceed  in  the  courts  to  deter- 
mine all  causes  according  to  the  laws  then  established  (the 
early  laws  of  the  general  court),  and  where  there  is  no  law 
"  then  as  near  the  law  of  God  as  they  can."  The  council 
is  also  empowered  to  make  orders  for  the  general  conduct 
of  business  which  is  not  yet  covered  by  any  law,  and  herein 
to  apply'  its  best  discretion  according  to  the  rule  of  God's 
word.  There  is  here  absolutely  no  reference  to  the  common 
law  of  England.  As  a  subsidiary  law  the  word  of  God  is 
appealed  to,  as  interpreted  by  the  best  discretion  of  the 
magistrates.  This  led  to  the  administration  of  a  rude 
equity,  according  to  the  idea  of  justice  held  by  the  magis- 
trate, influenced  by  popular  ideas  and  customs.  With  a 
homogeneous  population  holding  the  same  general  views  on 
morals  and  polity,  a  true  popular  system  of  law  could  thus 
be  produced,  unrefined  by  juristic  reasonings,  untrammeled 
by  technical  precedents,  satisfying,  in  general,  the  sense  of 
right  "in  the  community.  Should,  however,  alien  elements 
intrude,  they  would  find  such  a  system  exceedingly  uncon- 
genial and  oppressive. 

We  find  that  in  the  early  years  of  the  colony  the  magis- 
trates and  persons  in  authority  were  intensely  reluctant  to 
have  any  written  laws  made,  because  by  these  their  discretion 
would  be  restrained.  The  reason  assigned  by  Winthrop 2 
for  this  reluctance  was  the  desire  to  have  laws  grow  up  by 
custom,  so  as  to  have  them  adapted  to  the  nature  and  dis- 
position of  the  people,  which  could  not  be  sufficiently  known 
to  the  magistrates  properly  to  legislate  for  them.  A  second 

1  Massachusetts  Colonial  Records,  I,  174. 

*  John  Winthrop's  History  of  New  England,  322. 


11.     REINSCH:  COLONIAL  COMMON  LAW   373 

reason  was  that  the  charter  provided  that  the  colonists 
should  make  no  laws  repugnant  to  the  laws  of  England. 
This  they  held  to  refer  to  positive  legislation.  The  growth 
of  law  by  custom,  though  the  product  might  be  radically 
opposed  to  English  principles,  they  believed  no  infringement 
of  the  charter.  Notwithstanding  these  reasons  of  the  magis- 
trates, the  general  court  insisted  upon  having  a  compre- 
hensive body  of  laws  made.  The  controversy  had  none  of 
the  acrimony  of  the  similar  struggle  for  written  laws  in 
Rome  before  the  Twelve  Tables ;  but  we  can  note  the  same 
principles  at  work;  the  magistracy,  in  whose  discretion  the 
administration  of  the  laws  has  so  far  been  founded,  are 
reluctant  to  give  up  a  part  of  this  power,  and  therefore 
resist  a  codification  of  law  The  outcome  of  this  agita- 
tion was  the  passage  of  the  celebrated  Body  of  Liberties,1 
in  164?1.  To  evade  one  of  the  objections  noted  by  the  magis- 
trates, this  code  was  not  really  enacted  as  law,  but  the  general 
court  did  "  with  one  consent  fully  authorize  and  earnestly 
entreat  all  that  are  and  shall  be  in  authority  to  consider  them 
as  laws."  The  laws  had  been  prepared  by  Nathaniel  Ward, 
a  minister  with  some  legal  training.  They  had  been  revised 
by  the  general  court  and  sent  into  every  town  for  further 
consideration.  Upon  the  suggestions  thus  gathered  they 
were  again  revised  and  then  established  as  above  mentioned. 
A  more  careful  process  of  legislation  is  perhaps  nowhere 
recorded.  The  laws  may  therefore  be  looked  upon  as  a  full 
expression  of  the  popular  sense  of  what  the  legal  relations 
in  the  colony  should  be. 

Ward,  in  a  letter  to  Governor  Winthrop,2  December  22, 
1639,  questions  the  advisability  of  submitting  the  laws  to  the 
different  towns  for  consideration  by  the  freemen  thereof, 
and  fears  that  the  spirit  of  the  'people  might  rise  too  high. 
They  should  not  be  denied  their  proper  and  lawful  liberties, 
but  he  questions  "  whether  it  be  of  God  to  interest  the  in- 
ferior sort  in  that  which  should  be  reserved  *  inter  optimates 
penes  quos  est  sanctre  leges.' ' 

Turning   now   to   the    Body    of   Liberties    itself,    we   find 

1  Winthrop's  Journal,  Ed.  1790,  p.  237. 

*  Massachusetts  Historical  Collections,  Series  IV,  vol.  VII,  26. 


374  ///.     THE    COLONIAL    PERIOD 

the  doctrine  stated  in  1636  again  announced,  that  no  man's 
life  shall  be  taken  away  unless  by  virtue  of  some  express 
law  established  by  the  general  court,  or,  in  case  of  the 
defect  of  the  law  in  any  particular  case,  by  the  word  of 
God. l  The  principle  is  thus  stated  in  the  Massachusetts 
fundamentals :  2  "In  all  criminal  offenses  where  the  law  hath 
prescribed  no  certain  penalty,  the  judges  have  power  to 
inflict  penalties  according  to  the  rule  of  God's  word." 

The  provisions  of  the  Body  of  Liberties  also  show  the 
theocratic  nature  of  the  Puritan  colony.  It  contains,  more- 
over, many  provisions  originated  by  the  colonists  in  response 
to  their  special  needs.  The  criminal  law  is  founded  on  the 
code  of  Moses,  though  the  breaking  of  the  Sabbath  and  the 
striking  of  parents  are  not  made  capital  offenses.  In  the 
laws  of  1658,  however,  the  latter  offense,  as  well  as  rebellious 
conduct  against  parents  is  made  capital.3  The  law  of  inher- 
itance is  taken  from  the  Scriptures. 

Imprisonment  for  debt,  except  when  property  is  con- 
cealed, is  not  in  use.  Any  debt  due  in  bill  or  specialty  may 
be  assigned,  and  the  assignee  may  sue  upon  the  same.  Cases 
involving  an  amount  not  over  forty  shillings  are  to  be  heard 
by  magistrates  or  a  commission  of  three  freemen  without  a 
jury.  A  suit  is  commenced  by  summons  or  attachment. 
Testimony  may  be  taken  in  writing  by  any  magistrate  or 
authorized  commissioner  to  be  used  in  criminal  or  civil  cases. 
If  the  party  cast  has  any  new  evidence  or  matter  to  plead  he 
can  obtain  a  new  trial  or  bill  of  review.  Free  tenure  of  lands 
is  adopted  and  all  feudal  incidents  are  abolished.  Convey- 
ances are  to  be  by  deed  in  writing.  The  period  of  prescrip- 
tion for  title  by  possession  is  fixed  at  five  years.  Civil 
marriage  is  instituted. 

The  code  of  Ward  was  not  the  only  one  prepared  for 
Massachusetts.  John  Cotton  also  submitted  to  the  general 
court  a  body  of  laws,  founded  throughout  on  the  Scriptures, 
with  references  thereto.4  This  code,  though  published  in 

1  Body  of  Liberties,  p.  1. 

1  Hutchinson,  State  Papers,  205. 

"  Book  of  General  Lawes  and  Liberties,  1660,  p.  8  and  following. 

4  Hutchinson  Papers,  vol.  I,  160. 


11.     REINSCH:  COLONIAL  COMMON  LAW   375 

England  and  there  reputed  to  be  in  force  in  the  colony, 
was  never  enacted  at  all  by  the  general  court.  The  concep- 
tion of  law  current  among  the  Puritans  is  well  illustrated  by 
the  remark  of  Cotton  that  he  should  not  "  call  them  laws 
because  God  alone  has  the  power  to  make  law,  but  conven- 
tions between  men."  This  theory  of  law  as  the  command  of 
God,  the  mediaeval  conception  uncolored  by  the  modern  views 
of  sovereignty,  seems  to  have  been  firmly  held  by  the  Puri- 
tans of  New,  as  of  Old  England. l  The  same  view  in  addition 
to  the  reasons  cited  above  may  have  prompted  the  general 
court  not  to  call  the  Body  of  Liberties  laws,  but  to  pass 
them  in  the  form  of  recommendations. 

Turning  now  to  the  practice  of  magistrates  and  courts  in 
the  actual  conduct  of  cases  we  shall  find  the  same  principles 
universally  acknowledged.  Everywhere,  the  divine  law,  inter- 
preted by  the  best  discretion  of  the  magistrates,  is  looked 
upon  as  the  binding  subsidiary  law ;  while  the  common  law 
is  at  most  referred  to  for  the  sake  of  illustration. 

In  1641,  the  court  had  under  consideration  the  case  of  the 
rape  of  a  small  child.  There  was  a  great  question  as  to  what 
kind  of  sin  it  was,  and  the  court  "  sought  to  know  the 
mind  of  God  by  the  help  of  all  the  elders  of  the  country." 
On  the  authority  of  Deuteronomy  XVII,  12,  it  was  held  in 
another  case  that  presumptuous  sins  were  not  capital  unless 
committed  in  open  contempt  of  authority ;  and,  in  connection 
with  this,  Winthrop  remarks  that  the  "  only  reason  that 
saved  their  lives  was  that  the  sin  was  not  capital  by  any 
express  law  of  God,  nor  was  it  made  capital  by  any  law  of 
our  own."  In  the  same  connection,  Winthrop  discusses  the 
exaction  of  a  confession  from  a  delinquent  in  capital  cases. 
It  was  decided  tha,t  where  one  witness  and  strong  presump- 
tion point  at  the  offender,  the  judge  might  examine  him 
strictly;  but  if  there  is  only  slight  suspicion  the  judge  is 
not  to  press  him  for  answer.2  After  the  trial  in  the  Hing- 
ham  matter 3  the  Deputy  Governor  stated  in  a  public 
speech:  "  The  great  questions  that  have  troubled  the  country 

1  Figgis,  Divine  Right  of  Kings,  p.  223. 

•  Winthrop's  History  of  New  England,  II,  56,  250. 

1  Ibid.,  II,  221,  228. 


376  ///.     THE   COLONIAL.  PERIOD 

are  about  the  authority  of  the  magistrates  and  the  liberty 
of  the&people.  The  covenant  between  you  and  us  is  that  we 
shall  judge  you  and  your  causes  by  the  rules  of  God's  law 
and  our  own." 

On  the  trial  of  Mr.  Hubbard  l  the  court  told  the  prisoner 
that  he  was  to  be  tried  by  the  law  of  God,  which  the  magis- 
trates were  to  judge  by  in  case  of  the  defect  of  the  express 
law.  Hubbard  complained  that  the  law  of  God  admitted  of 
various  interpretations,  and  after  being  fined  and  bound  to 
his  good  behavior  he  asked  to  know  what  good  behavior  was. 
The  jury  in  this  case  found  him  guilty  of  uttering  diverse 
speeches  "  tending  to  sedition  and  contempt  of  said  govern- 
ment and  contrary  to  the  law  of  God  and  the  peace  and 
welfare  of  the  country." 2  The  form  of  punishment  was 
largely  in  the  discretion  of  the  magistrates.3  Although  the 
English  names  of  actions  were  used,  the  practice  was  exceed- 
ingly lax,  and  the  action  on  the  case  was  constantly  used  for 
the  recovery  of  land;  thus  disregarding  the  fundamental 
distinction  between  real  and  personal  property  and  real  and 
personal  actions  in  the  English  law.4  The  distinctions 
between  common  law  and  admiralty  procedure  were  totally 
disregarded. 5 

In  the  Hutchinson  Papers  6  there  is  preserved  a  very  inter- 
esting account  of  a  case  before  Symonds,  a  magistrate.  To 
judge  from  his  letters,  Symonds  was  a  careful  student  and 
great  admirer  of  the  English  common  law. 7  The  case  under 
consideration,  Giddings  vs.  Brown,  brought  up  some  inter- 
esting questions  as  to  the  nature  of  law  and  the  power  of 
the  courts.  A  dwelling  had  been  voted  by  a  town  to  its 
minister;  the  plaintiff  had  resisted  the  collection  of  the 
tax  that  had  been  levied  to  pay  for  this  dwelling,  and  his 
goods  were  accordingly  distrained.  Symonds,  in  giving 

1  Winthrop's  History  of  New  England,  II,  255. 

*  Massachusetts  Historical  Society  Collections,  II,  vol.  IV,  110. 
8  Lewis,  History  of  Lynn,  pp.  73,  81. 

*  Washburn,  Judicial  History  of  Massachusetts,  p.  61. 

8  Case  of  Lady  Latour  vs.  Bailey,  Winthrop's  History  of  New  Eng- 
land, II,  192. 

9  Hutchinson  Papers,  Vol.  II,  p.  1. 

T  Letters  of  Symonds  to  Gov.  Winthrop,  Massachusetts  Historical 
Society  Collections,  IV,  vol.  VII,  pp.  124,  132. 


11.     REINSCH:  COLONIAL  COMMON  LAW   377 

judgment  for  the  plaintiff,  says  that  "  the  fundamental  law 
which  God  and  nature  has  given  to  the  people  cannot  be 
infringed.  The  right  of  property  is  such  a  fundamental 
right.  In  this  case  the  goods  of  one  man  were  given  to 
another  without  the  former's  consent.  This  resolve  of  the 
town  being  against  the  fundamental  law  is  therefore  void, 
and  the  taking  was  not  justifiable."  Symonds  refers  with 
respect  to  the  English  law  and  quotes  Finch  and  Dalton. 
He  uses  it,  however,  merely  for  illustration,  and  says  "  let  us 
not  despise  the  rules  of  the  learned  in  the  laws  of  England 
who  have  every  experience."  The  precedents  on  which  he 
relies  are  colonial  and  their  binding  force  is  recognized.  The 
substance  of  the  judgment  is  that  property  cannot  be  taken 
by  public  vote  for  private  use.  The  opinion  is  interesting 
as  an  expression  of  natural  law  philosophy,  and  it  is,  per- 
haps, the  earliest  American  instance  where  the  power  is 
claimed  for  the  courts  to  control  legislative  action  when 
opposed  to  fundamental  law. l  The  case,  moreover,  shows 
very  clearly  in  what  light  the  common  law  was  regarded  by 
the  New  England  colonists ;  not  at  all  binding  per  se,  but  in 
as  far  as  expressive  of  the  law  of  God  to  be  used  for  purposes 
of  illustration  and  guidance. 

Popular  courts  of  jurisdiction  in  petty  cases,  which  had 
long  fallen  into  disuse  in  England,  were  established  in  most 
of  the  colonies.  In  Massachusetts  inferior  courts  consisting 
of  five  judges,  one  of  whom  was  an  assistant,  and  having 
jurisdiction  in  lesser  civil  and  criminal  cases,  were  early  estab- 
lished.2 Petty  civil  cases  in  the  towns  were  tried  by  courts 
of  one  judge,  or  commissions  of  three  freemen.3  A  system 
of  appeals  was  instituted,  ascending  from  the  town  court  to 
the  inferior  or  county  court,  thence  to  the  assistants,  thence 
to  the  general  court.  Appeal  to  England  was  not  allowed 
and  claims  for  it  were  always  strenuously  resisted. 

The  pleadings  in  these  courts  were  very  concise  and  in- 
formal, and  there  was  little  regard  paid  to  forms  of  action.4 

1  Cf.  Coke's  opinion  in  Bonham's  Case,  8  Rep.,  118a. 

*  Massachusetts  Colonial  Records,  I,  169. 

8  Ibid.,  239. 

4  Washburn,  Judicial  History,  48. 


378  ///.     THE   COLONIAL   PERIOD 

Up  to  1647,  the  pleadings  seem  to  have  been  oral.  By  a  law 
of  that  date  1  it  was  enacted  that  the  declaration  should  be 
drawn  up  in  writing  and  should  be  filed  with  the  clerk  of  the 
court  three  days  before  the  term. 

Contrary  to  the  English  custom,  a  record  of  evidence 
given  in  the  courts  seems  to  have  been  kept  from  the  earliest 
times.  In  1650,  it  was  enacted  2  that  on  account  of  the 
inconvenience  of  taking  verbal  testimony  in  court,  the  clerk 
not  being  able  to  make  a  perfect  record  thereof  and  prevent 
all  mistakes,  the  evidence  should  be  presented  in  writing 
to  the  court,  either  attested  before  a  magistrate  or  in  court 
upon  oath.  This  provision,  thoroughly  at  variance  with  the 
common  law,  excited  the  adverse  comment  of  professional 
lawyers. 8 

Coming  now  to  the  trial  by  jury,  we  find  that  this  ancient 
and  popular  institution  was  in  early  use  in  Massachusetts, 
a  jury  having  been  empanelled  a  few  months  after  Win- 
throp's  arrival.4  The  system  was,  however,  by  no  means 
unquestionably  accepted,  and  seems  to  have  had  a  very  inse- 
cure'tenure  for  a  time.  In  1642,  a  commission  was  ap- 
pointed to  consider  whether  to  retain  or  dismiss  juries  in  the 
trial  of  causes;6  and  it  appears  that  juries  were  for  a  time 
abolished,  for,  in  1652,  we  find  the  following  resolve  "  the 
law  about  juries  is  repealed  and  juries  are  in  force  again."6 

The  mode  of  trial  exhibits  many  interesting  peculiarities. 
The  province  of  judge  and  jury  is  quite  correctly  defined 
in  an  act  of  1642,  where  the  finding  of  matters  of  fact  by 
the  jury,  instructions  in  law  by  the  court,  and  the  decision 
of  matters  of  equity  by  the  latter  is  provided  for.7  In  1657, 
the  jury  was  permitted  to  present  a  special  verdict.8  But  it 
seems  that  for  a  time  the  magistrates  acquired  a  very  con- 
siderable power  of  controlling  the  jury.  Hutchinson  says: 
"  The  jury  sometimes  gave  their  verdict,  that  there  were 
strong  grounds  of  suspicion,  but  not  sufficient  for  convic- 

1  Massachusetts  Colonial  Records,  II.  219. 

•Ibid.,  II,  211. 

'Documents  Relative  to  the  Colonial  History  of  New  York,  IV,  929. 

•  Massachusetts  Colonial  Records,  I,  77-78. 
'Massachusetts  Colonial  Records,  II,  28. 

•  Ibid.,  IV,  107.         »  Ibid.,  II,  21.  •  Ibid.,  Ill,  425. 


11.    REINSCH:  COLONIAL  COMMON  LAW   379 

tion.  Upon  such  a  verdict  the  court  would  give  sentence 
for  such  offenses  as  the  evidence  at  the  trial  might  have 
disclosed."  He  adds  in  a  note  the  advice  of  Lieut.  Gov. 
Stoughton  to  Governor  Hinckly  of  Plymouth,  given  in  1681 : 
"  The  testimony  you  mention  against  the  prisoner  I  think 
is  sufficient  to  convict  him;  but,  in  case  your  jury  be  not 
of  that  mind,  if  you  hold  yourself  strictly  .obliged  by  the 
laws  of  England,  no  other  verdict  but  *  not  guilty  '  can  be 
brought  in;  but,  according  to  our  practice  in  this  jurisdic- 
tion, we  should  punish  him  with  some  grievous  punishment 
according  to  the  demerit  of  his  crime,  though  not  found 
capital."  l 

In  1672,  an  attempt  was  made  to  limit  the  power  of  the 
magistrates  in  this  respect.2  For  the  controlling  authority 
of  the  magistrates  there  is  offered  as  a  substitute  the  archaic 
method  of  attainting  the  jury  for  giving  a  verdict  contrary 
to  the  weight  of  evidence;  and  the  law  allowing  the  magis- 
trates to  refuse  the  verdict  of  the  jury  is  repealed.  This 
is  a  remarkable  instance  of  the  revival  of  an  archaic  method 
which  had  all  but  disappeared  in  England.  The  jury  in 
such  a  case  was  to  be  tried  by  a  new  jury  of  twenty-four, 
and  the  court  had  no  control  over  the  verdict.  It  seems  that 
many  juries  were  attainted,  because  in  1684  it  was  enacted3 
on  account  of  the  unreasonable  trouble  caused  by  numerous 
attaints,  that  the  cause  of  attaint  shall  be  given  in  writing; 
that  if  the  verdict  is  confirmed,  the  person  attainting  shall 
be  fined  34  pounds;  and  that  the  jury  may  also  prosecute 
him  for  slander,  with  other  additional  penalties.  The  jury 
were  also  at  liberty,  when  they  were  not  clear  in  their  con- 
science about  any  case,  "  in  open  court  to  advise  with  any 
man  they  should  think  fit,  to  resolve  and  direct  them  before 
they  gave  their  verdict." 

In  the  colonial  system  of  Massachusetts  we  do  find  traces 
of  the  common  law;  the  less  technical  parts  of  its  terminol- 
ogy are  in  use,  forms  of  contracts  and  deeds  are  modeled  on 

1  Massachusetts  Historical  Society  Collections,  Series  II,  Vol.  I,  p. 
XXII. 

1  Massachusetts  Colonial  Records,  IV,  part  2,  p.  508. 

*  Massachusetts  Colonial  Records,  V,  449. 

*  Colonial  Laws  of  Massachusetts  Bay,  Ed.  1660,  pp.  47,  48. 


380  ///•     THE    COLONIAL   PERIOD 

English  precedents,  although  for  the  latter  acknowledg- 
ment and  recording  is  essential  to  validity.1  But  the  au- 
thority of  the  common  law  as  a  subsidiary  system  is  nowhere 
admitted,  its  principles  are  radically  departed  from,  and 
its  rules  used  only  for  purposes  of  illustration. 

The  magistrates  administered  a  rude  system  of  popular 
law  and  equity,  on  the  basis  of  the  Scriptures  and  their 
own  ideas  of  right,  generally  to  the  satisfaction  of  the  homo- 
geneous Puritan  communities;  though  there  are  some  strug- 
gles recorded,  such  as  that  for  written  laws  and  for  the  con- 
trol of  the  juries.  Capt.  Bredon  writes  to  the  Council  of 
Colonies,  speaking  of  the  printed  laws  of  Massachusetts: 
"  What  laws  are  not  mentioned  in  this  book  are  in  the  magis- 
trates' breasts  to  be  understood."  2  The  elements  dissatis- 
fied with  this  regime  generally  left  for  Rhode  Island,  the 
Connecticut  river  settlements,  Maine  or  New  Hampshire, 
where  society  was  less  autocratic;  but  still  we  find  a  num- 
ber of  protests  recorded  against  the  manner  of  administer- 
ing the  law  by  persons  remaining  in  the  colony. 

The  complaint  that  no  one  could  have  justice  but  mem- 
bers of  the  church  z  is  very  common  on  the  part  of  outsiders. 
In  164«6,  there  was  a  very  important  controversy,  in  which 
a  party  of  men  led  by  Robert  Child  demanded  the  estab- 
lishment of  English  law.  In  their  remonstrances  4  they  say 
that  they  cannot  discern  a  settled  form  of  government  ac- 
cording to  the  laws  of  England ;  nor  do  they  perceive  any 
laws  so  established  as  to  give  security  of  life,  liberty,  or 
estate.  They  object  to  discretionary  judgments  as  opposed 
to  the  unbowed  rule  of  law,  and  petition  for  the  establish- 
ment of  the  wholesome  laws  of  England,  which  are  the  result 
of  long  experience  and  are  best  agreeable  to  English  tem- 
pers; that  there  should  be  a  settled  rule  of  ad  judicature 
from  which  the  magistrates  cannot  swerve.  Those  laws  of 
England,  they  say,  are  now  by  some  termed  foreign,  and  the 
colony  termed  a  free  state. 

1  Massachusetts  Colonial  Records,  I,  116;    and  Suffolk  County  Deeds. 

*  Documents  Relative  to  the  Colonial  History  of  New  York,  I  ft,  39. 
'Massachusetts   Historical   Society   Collections,  Series   IV,   vol.   VII, 

p.  370. 

*  Hutchinson  Papers,  Prince  Society,  I,  189. 


11.     REINSCH:  COLONIAL  COMMON  LAW   381 

In  the  answer  by  the  general  court1  the  petitioners  are 
held  up  to  ridicule  for  their  own  ignorance  of  what  English 
laws  they  really  wanted.  It  is  then  asserted  that  the  laws 
of  England  are  binding  only  on  those  who  live  in  the  Eng- 
lish country,  for  neither  do  the  laws  of  Parliament  nor  the 
King's  writ  go  any  farther.  "  The  laws  of  the  colony," 
they  say  in  substance,  "  are  not  diametrically  opposed  to 
the  laws  of  England,  for  then  they  must  be  contrary  to 
the  laws  of  God,  on  which  the  common  law,  so  far  as  it  is 
law,  is  also  founded.  Anything  that  is  otherwise  estab- 
lished is  not  law  but  an  error,  as  it  cannot  be  according 
to  the  intent  of  the  law-makers  to  establish  injustice."  This 
is  the  true  Puritan  idea  of  law  as  the  command  of  God ; 
the  general  court  asserts  that  the  common  law,  so  far  as  it 
is  law,  must  embody  divine  justice.  For  their  part  the  Puri- 
tans prefer  to  go  to  the  original  source  of  law,  the  Scrip- 
tures. 

In  connection  with  this  matter  the  general  court  also 
made  a  declaration  which  was  evidently  intended  for  the 
general  public  and  the  home  government.2  They  there  as- 
sert that  the  government  is  framed  according  to  the  charter 
and  the  fundamental  and  common  laws  of  England.  They 
add  in  brackets,  "  taking  the  words  of  eternal  righteousness 
and  truth  with  them  as  the  rule  by  which  all  kingdoms  and 
jurisdictions  must  render  account."  Then  they  make  a 
comparison  between  the  fundamental  and  common  laws  of 
England  and  the  laws  of  the  colony,  taking  Magna  Charta 
as  the  chief  embodiment  of  English  common  law;  and  they 
state  that,  as  the  positive  laws  of  England  are  constantly 
being  varied  to  answer  different  conditions,  they  should  con- 
sider it  right  to  change  and  vary  their  legislation  according 
to  circumstances.  They  confess  an  insufficient  knowledge 
of  the  laws  of  England,  and  say,  "  If  we  had  able  lawyers 
amongst  us  we  might  have  been  more  exact."  Their  com- 
parison of  the  laws  shows  the  rudimentary  character  of 
their  knowledge.  Finding  some  discretion  allowed  English 
judges  in  criminal  cases  they  take  this  as  a  precedent  for 

1  Winthrop,  History  of  New  England,  II,  star  p.  284. 
*  Hutchinson  Papers,  1,  197. 


382  ///.     THE    COLONIAL    PERIOD 

the  Massachusetts  method  of  inflicting  penalties  according 
to  the  rule  of  God's  word.  They  conclude  by  instancing 
the  extraordinary  jurisdictions  in  England,  the  chancery, 
the  court  of  requests,  the  admiralty  and  ecclesiastical  courts, 
and  say  that  experience  shows  that  Englishmen  may  live 
comfortably  and  securely  under  some  other  laws  than  the 
common  and  statutory  laws  of  England. 

The  methods  of  Massachusetts  colonial  justice  are  de- 
scribed by  Letchford  in  his  book,  Plame  Dealing.  He  was 
a  lawyer  who  had  been  employed  in  doing  minor  editorial 
work  on  the  Body  of  Liberties.  Owing  to  the  prejudice 
against  lawyers,  general  in  the  colonies  but  especially  strong 
here,  he  was  not  permitted  to  practise  his  profession,  and 
therefore  was  perhaps  an  unreasonably  severe  critic  of  the 
system  under  which  he  suffered.  As  his  views  are,  however, 
corroborated  by  the  statements  of  other  witnesses,  their  truth 
so  far  as  the  proceedings  of  the  courts  are  concerned  may 
perhaps  be  accepted.  He  says  among  other  things  J  that 
the  governor  in  charging  the  grand  jury  uses  the  heads 
of  the  ten  commandments.  That  in  jury  trials  matters  of 
law  and  fact  are  not  distinguished.2  The  records  of  the 
courts  are  not  kept  in  due  form  of  law,  in  most  cases  th'e 
verdict  only  being  entered.  Hence  the  disposition  to  slight 
all  former  laws  and  precedents,  "  but  go  hammer  out  new 
upon  the  pretense  that  the  word  of  God  is  sufficient  to  rule 
us."  He  advises  his  brethren  to  "  despise  not  learning  nor 
the  learned  lawyers  of  either  gown." 

In  his  narrative  to  the  council3  Edward  Randolph  states 
that  "  the  laws  and  ordinances  of  Massachusetts  are  no 
longer  observed  than  they  stand  in  their  convenience;  and 
in  all  cases,  regarding  more  the  quality  and  affections  of 
the  persons  to  their  government  than  the  nature  of  their 
offense."  He  states  that  it  was  regarded  as  a  breach  of  the 
privilege  of  the  colony  to  urge  the  observation  of  the  laws 
of  England,  and  notes  some  of  the  provisions  repugnant 
to  the  common  law,  such  as  obtaining  prescriptive  title  to 

*Plaine  Dealing,  TrumtjulPs  edition,  p.  26. 

*Ibid.,  p.  27. 

*  Hutchinson  Papers,  II,  p.  210. 


11.     REINSCH:  COLONIAL  COMMON  LAW   383 

land  by  possession  for  five  years,  and  the  use  of  the  word 
of  God  as  a  rule  in  criminal  cases.  In  another  report  in 
1678  he  states  that  the  laws  of  England  are  neither  in  the 
whole  nor  in  any  part  of  them  valid  or  pleadable  in  the 
colonial  courts  until  received  by  the  General  Assembly. 1 

The  colony  always  resisted  claims  of  a  right  of  appeal 
to  England;  this  was  one  of  the  most  important  points  of 
controversy  between  the  colonial  court  and  the  home  govern- 
ment after  1660.  In  that  year  the  colonists  instructed 
Captain  John  Leveritt  as  their  agent  in  England  to  resist 
any  claims -or  assertions  of  appellate  jurisdiction,  because 
that  would  render  government  and  authority  in  the  colony 
ineffectual  and  bring  the  court  into  contempt  with  all  sorts 
of  people. 

In  1667,  the  Privy  Council  made  specific  objection  to  the 
laws  of  Massachusetts  repugnant  to  the  laws  of  England. 
The  Attorney  General  submitted  a  catalogue  of  such  laws.2 
In  answer  to  these  objections  the  general  court  made  several 
amendments  in  1681 ;  3  the  law  concerning  rebellious  sons, 
concerning  Quakers,  and  the  law  against  keeping  Christmas 
were  left  out;  but  no  alteration  was  made  in  the  law  of 
marriage  and  Sunday  legislation.  In  connection  with  this 
controversy  the  general  court  again  asserted  the  independ- 
ence of  the  colony  from  English  laws.4  They  speak  of  the 
laws  of  England  as  bounded  within  four  seas  and  not  reach- 
ing to  America.  The  American  subjects  not  being  repre- 
sented in  Parliament  should  not  be  impeded  in  their  trade 
by  Parliament.  Before  this  time  legal  proceedings  had  been 
carried  on  in  the  name  of  the  colony.  One  of  the  results 
of  the  controversy  was  that  the  general  court  yielded  in  this 
respect,  and  process  was  hereafter  issued  in  the  name  of 
the  king. 

After  the  charter  had  been  annulled,  there  followed  a 
strong  and  continued  effort  to  introduce  the  common  law. 
By  the  commission  of  Sir  Edmund  Andros,  in  1688  the  gov- 

1  Edward  Randolph,  Prince  Society  Publications,  II,  311. 
s  Palfrey,  quoting  from   Phillip's  collection  of  manuscripts,  History 
of  New  England,  III,  309. 

*  Massachusetts  Colonial  Records,  V,  321. 
«  Ibid.,  V,  198,  200. 


384  ///.     THE   COLONIAL   PERIOD 

ernor  and  council  were  appointed  a  court  of  record  to  try 
civil  and  criminal  cases,  their  proceedings  and  judgment  to 
be  consonant  and  agreeable  to  the  laws  and  statutes  of  Eng- 
land. l  The  arbitrary  government  of  Andros,  however,  did 
perhaps  more  to  introduce  a  knowledge  of  the  common  law, 
than  this  provision,  because  against  his  despotic  rule  the 
colonists  now  began  to  assert  rights  protected  by  the  Eng- 
lish law,  such  as  the  right  of  Habeas  Corpus.  Thus  when 
we  hereafter  find  expressions  of  admiration  for  or  adherence 
to  the  common  law,  such  as  are  very  common  in  the  succeed- 
ing century  and  especially  at  the  beginning  of  the  Revo- 
lutionary War,  they  refer  rather  to  the  general  principles 
of  personal  liberty  than  to  the  vast  body  of  rules  regulating 
the  rights  of  contract  and  property  and  the  ordinary  pro- 
ceedings in  court. 

By  the  charter  of  1692,  the  appointment  of  judges  and 
justices  of  the  peace  was  given  to  the  governor  and  the 
council.  Their  tenure  was  practically  during  good  beha- 
vior;2 but  though  the  direct  popular  nature  of  the  courts 
was  thus  destroyed,  it  was  a  considerable  time  before  trained 
jurists  came  to  control  the  administration  of  law  in  Mas- 
sachusetts. 

Chief  Justice  Attwood  visited  Boston  in  1700,  and  in  his 
report  to  the  Lords  of  Trade  8  he  states  that  he  had  "  pub- 
licly exposed  the  argument  of  one  of  the  Boston  clergy,  that 
they  were  not  bound  in  conscience  to  obey  the  laws  of  Eng- 
land." He  complains  of  various  insults  offered  him  while 
sitting  as  judge  in  the  admiralty  court.  He  attended  the 
session  of  the  Superior  court  at  Boston,  and  there  observed 
that  their  "  methods  were  abhorrent  from  the  laws  of  Eng- 
land and  all  other  nations."  He  especially  notes  the  ease 
with  which  new  trials  are  obtained  and  the  fact  that  evidence 
is  offered  in  writing,  which  is  a  temptation  to  perjury,  new 
proofs  being  admitted  at  the  later  trials.  This  criticism 
shows  that  there  was  no  sudden  breach  in  the  development 
of  Massachusetts  law,  and  that  at  the  beginning  of  the 

1  Documents  Relative  to   Colonial  History  of  New   York,   III,  539. 

*  Washburn,  Judicial  History,  p.  138. 

•  Documents  Relative  to  Colonial  History  of  New  York,  IV,  929. 


11.     REINSCH:  COLONIAL  COMMON  LAW   385 

18th  century  the  old  popular  law  was  still  largely  admin- 
istered in  derogation  of  the  more  highly  developed  rules  of 
the  common  law.  It  is  stated  that  after  the  change  in  the 
appointment  of  judges,  practice  became  very  captious  and 
sharp.  In  1712,  the  first  professional  lawyer,  Lynde,  be- 
came Chief  Justice,  and  after  this  we  find  that  English  books 
and  authors  are  frequently  cited.  1  Yet  Massachusetts  juris- 
prudence exhibited  for  a  long  time  thereafter  the  marks  of 
its  early  informality.  Jefferson  says  in  a  letter  to  Attorney 
General  Rodney,  September  25,  1810, 2  speaking  of  Lincoln, 
of  Massachusetts,  as  a  possible  successor  to  Gushing  as 
Chief  Justice:  "He  is  thought  not  to  be  an  able  common 
lawyer,  but  there  is  not  and  never  was  an  able  one  in  the 
New  England  states.  Their  system  is  sui  generis  in  which 
the  common  law  is  little  attended  to.  Lincoln  is  one  of  the 
ablest  in  their  system."  How  strongly  the  old  view  of  law 
which  we  have  noticed  maintained  itself  in  Massachusetts, 
we  see  from  John  Adams'  statement  in  the  Novanglus : 3 
"  How  then  do  we  New  Englanders  derive  our  laws.  I  say 
not  from  Parliament,  not  from  the  common  law,  but  from 
the  law  of  nature  and  the  compact  made  with  the  king  in 
our  charter.  Our  ancestors  were  entitled  to  the  common 
law  of  England  when  they  emigrated;  that  is  to  say,  to 
as  much  of  it  as  they  pleased  to  adopt  and  no  more.  They 
were  not  bound  or  obliged  to  submit  to  it  unless  they 
chose." 

In  Massachusetts,  during  the  17th  century  we  find  a  con- 
tinued, conscious,  and  determined  departure  from  the  lines 
^)of  the  common  law.     It  is  not  accepted  as  a  binding  sub- 
/  sidiary  system,  the  law  of  God  there  taking  its  place.     In- 
deed, it  colored  and  influenced  the  legal  notions  of  the  col- 
onists, but  they  always  resisted  the  assertion  of  its  binding 
/force.     The  absence  of  lawyers  made  the  administration  of 
|a  highly  developed  system  impossible.     We  have  a  layman 
ilaw,  a  popular,  equitable  system,  which  lacks  the  elements 

1  Arguments  of  Valentine,  in  Matson  vs.  Thomas,  1720,  citing  Coke 
and  Hobart. 

1  Jefferson's  Complete  Works,  V,  546. 
« 1774,  John  Adams,  Works,  IV,  122. 


386  ///.     THE   COLONIAL   PERIOD 

of  rigor,  of  clear  cut  principles,  of  unswerving  application, 
but  which  forms  a  basis  on  which  a  simple  community  could 
well  adjust  its  legal  relations. 

Connecticut  and  New  Haven 

In  Connecticut  and  New  Haven  we  find  a  development 
similar  to  that  of  Massachusetts.  The  Connecticut  code 
of  1642  was  copied  from  that  of  Massachusetts.1  The  fun- 
damental order  of  New  Haven  2  provides  for  the  popular 
election  of  the  magistrates,  and  for  the  punishment  of  crim- 
inals "  according  to  the  mind  of  God  revealed  in  his  word." 
The  general  court  is  also  to  proceed  according  to  the  Scrip- 
tures, the  rule  of  all  righteous  laws  and  sentences.  In  the 
fundamental  agreement  8  all  free  men  assent  that  the  Scrip- 
tures hold  forth  a  perfect  rule  for  the  direction  and  govern- 
ment of  all  men  in  all  duties.  The  Scriptural  laws  of  inherit- 
ance, dividing  allotments,  and  all  things  of  like  nature  are 
adopted,  thus  very  clearly  founding  the  entire  system  of 
civil  and  criminal  law  on  the  word  of  God.  This  principle 
is  re-enacted  in.  similar  language  in  1644. 4 

In  Connecticut  the  trial  by  jury  was  put  into  practice 
from  the  first,  the  use  of  the  grand  jury  coming  in  some- 
what later.5  It  was,  however,  provided  that  upon  continued 
failure  to  agree,  a  majority  of  the  jury  could  decide  the 
issue,  and  in  case  of  equal  division,  the  magistrate  had  a 
casting  vote.  6  In  New  Haven  the  institution  of  jury  trial 
was  not  at  first  adopted.7  It  is  stated  that  this  was  so  set- 
tled upon  some  reasons  urged  by  Mr.  Eaton. 

As  already  indicated,  the  system  of  popular  courts  was 
adopted  in  both  colonies.  In  1699,  the  practice  of  commis- 
sioning justices  for  stated  periods  was  tried,  but  it  was  con- 
tinued for  only  three  years.8  The  judges  of  these  courts 

Connecticut  Records,  I,  77. 

New  Haven  Records,  I,  73. 

New  Haven  Records,  I,  1. 

Ibid.,  I,  130. 

Connecticut  Records,  I,  9,  91. 

Ibid.,  84. 

Massachusetts  Historical  Society  Collections,  series  II,  vol.  VI,  320. 

Ibid.,  series  VI,  vol.  Ill,  44. 


11.     REINSCH:  COLONIAL  COMMON  LAW  387 

exercised  a  broad  discretion.  That  Connecticut  was  inde- 
pendent of  the  home  country  in  legal  matters  is  noted  by 
Quary  in  his  report  to  the  Lords  of  Trade  in  1707. 1  If 
possible,  these  colonies  departed  even  further  from  the  com- 
mon law  than  Massachusetts  in  their  system  of  popular 
courts,  absence  or  radical  modification  of  the  jury  trial, 
discretion  of  the  magistrates,  and  in  the  case  of  New  Haven, 
the  clear  and .  unequivocal  assertion  of  the  binding  force 
of  divine  law  as  a  common  law  in  all  temporal  matters,  as 
a  guiding  rule  in  civil  and  criminal  jurisdictions. 


New  Hampshire 

The  settlers  of  New  Hampshire  and  Vermont  were  in  many 
cases  malcontents  who  had  left  the  Puritan  colonies.  They 
were  not  so  homogeneous  a  society,  and  therefore  the  asser- 
tion of  the  binding  force  of  the  common  law  could  be  more 
successfully  made.  The  commission  of  1680  orders  pro- 
ceedings in  the  courts  to  be  consonant  to  the  laws  and  stat- 
utes of  England,  regard,  however,  being  had  to  the  con- 
dition of  the  colonists. 2  The  General  Assembly,  meeting 
at  Portsmouth  in  March,  1679-80,  passed  a  body  of  general 
laws  in  which  they  claimed  the  liberties  belonging  to  free 
Englishmen.  They,  however,  refused  to  admit  the  binding 
force  of  any  code,  imposition,  law,  or  ordinance  not  made 
by  the  General- Assembly  and  approved  by  the  president 
and  council.  The  code  itself  is  very  simple,  but  in  place  of 
biblical  references  English  statutes  are  cited.3  As  a  matter 
of  fact  it  may  be  questioned  whether  this  apparent  sub- 
mission to  English  law  was  more  than  formal.  The  gen- 
eral court  petitioned  against  appeals  to  England  in  1680.4 
The  settlers  were  so  impatient  of  control  that  all  questions 
of  law  and  fact  were  decided  by  juries.  The  judges  had 
a  term  of  one  year  only  and  none  of  the  influence  of  the 

1  Documents  Relative  to  Colonial  History  of  New  York,  V,  31. 
1  Poore,  Constitutions,  Charters  and  Documents,  p.  1276. 

*  Belknap's    New   Hampshire,   p.   454;    New   Hampshire   Documents 
and  Records,  I,  382. 

*  Cited  in  Belknap's  New  Hampshire,  p.  457. 


111.     THE    COLONIAL    PERIOD 


Massachusetts  magistrates.1  Under  this  regime,  the  admin- 
istration of  the  rules  of  the  common  law  would  of  course 
be  impossible.  The  early  judges  and  chief  justices  were  all 
business  men,  seamen,  or  farmers;  only  in  1726  did  a  man 
of  liberal  education,  Judge  Jaffray,  a  graduate  of  Harvard 
in  1702,  appear  on  the  bench.2  And  it  was  only  in  1754 
that  a  lawyer,  Theodore  Atkinson,  also  a  graduate  of  Har- 
vard, became  chief  justice.  Samuel  Livermore,  chief  jus- 
tice in  1782,  though  trained  in  the  law,  refused  to  be  bound 
by  precedents,  holding,  "  that  every  tub  should  stand  on  its 
own  bottom;"  he  looked  upon  the  adjudications  of  Eng- 
lish tribunals  as  only  illustrations.3  It  may  be  said  that 
no  real  jurist,  no  man  acknowledging  a  regular  develop- 
ment of  the  law  by  precedents  and  finding  an  authoritative 
guidance  in  the  adjudications  of  the  common  law  judges, 
held  judicial  power  in  New  Hampshire  during  the  entire 
18th  century. 

Rhode  Island 

This  colony  was  consciously  founded  on  a  democratic 
basis.4  The  charter  is  made  the  basis  of  government,  by 
which  legislative  action  is  to  be  restricted.  In  order  to 
escape  the  imputation  of  anarchy,  and  to  preserve  every  man 
safe  in  his  person  and  estate,  the  common  law  is  to  be  taken 
as  a  model  for  legislation  in  as  far  as  the  nature  and  con- 
stitution of  the  colony  will  permit.  The  code  itself  shows  a 
very  archaic  conception  of  law.  In  its  classification  it  espe- 
cially reminds  us  of  the  Anglo-Saxon  dooms  in  the  prom- 
inence it  accords  to  crimes  and  torts.  It  classifies  law  under 
five  general  heads  :  (  1  )  murthering  fathers  and  mothers  ; 
(2)  man  slayers;  (3)  sexual  immoralities.;  (4)  men- 
stealers;  (5)  liars,  under  which  heading  are  comprised  per- 
jury, breach  of  covenant,  slander,  and  other  torts.  On  the 
other  hand,  however,  it  contains  some  provisions  of  an  ad- 

1  Danl.  Chipman,  Vermont  Reports,  pp.  11,  19,  21. 

*  C.  H.  Bell,  Bench  and  Bar  of  New  Hampshire,  13. 

s  Bell,  Bench  and  Bar,  p.  37. 

4  Code  of  Civil  and  Criminal  Law  of  1647;  cited  in  full  in  Arnold's 
Hi»tory  of  Rhode  Island,  I,  205,  et  seq.;  Rhode  Island  Colonial  Rec- 
ord*, 1,  156. 


11.     REINSCH:  COLONIAL  COMMON  LAW    389 

vanced  nature.  Murder  and  man-slaughter  are  distin- 
guished on  the  principle  of  malice  aforethought.  Theft 
committed  by  a  child  or  for  hunger  is  declared  to  be  only 
petty  larceny.  Promises  and  contracts,  especially  for  large 
amounts,  are  to  be  drawn  up  in  writing.  The  conveyance 
of  land  must  also  be  made  in  this  form.  This  provision  by 
many  years  antedates  the  celebrated  Statute  of  Frauds  of 
English  law.  Imprisonment  of  debtors  is  forbidden,  "  none 
shall  lie  languishing  for  no  man's  advantage."  Lands  are 
made  liable  to  execution.  In  general,  the  statement  of  the 
code  is  concise  and  clear;  English  statutes  are  frequently 
cited,  but  in  spirit  the  code  is  thoroughly  original  though  in 
parts  archaic.  That  it  was  considered  a  sufficient  statement 
of  law  is  shown  by  the  enactment  that  "  In  all  other  matters 
not  forbidden  by  the  code  all  men  may  walk  as  their  con- 
science persuades  them."  A  modified  form  of  jury  trial  is 
instituted  by  a  later  enactment.1  The  province  of  judge 
and  jury  is  there  defined.  As  in  Massachusetts,  attaint  is 
made  the  remedy  for  a  false  verdict. 

Bellomont  sent  the  laws  of  Rhode  Island  to  the  Council 
in  1699,2  when  he  gives  it  as  his  opinion  that  the  world  never 
saw  such  a  parcel  of  fustian.  He  also  says :  "  Their  pro- 
ceedings are  very  unmethodical,  no  wise  agreeable  to  the 
course  and  practice  of  the  courts  of  England,  and  many 
times  very  arbitrary  and  contrary  to  the  laws  of  the  place; 
as  is  affirmed  by  the  attorneys  at  law  that  have  sometimes 
practiced  in  their  courts."  ..."  They  give  no  directions 
to  the  jury  nor  sum  up  the  evidences  to  them,  pointing  out 
the  issue  which  they  are  to  try."  Later,  however,  in  1708, 
Governor  Cranston  writes  to  the  Lords  of  Trade :  "  The 
laws  of  England  are  approved  of  and  pleaded  to  all  intents 
and  purposes,  without  it  be  in  particular  acts  for  the 
prudential  affairs  of  the  colony."  3 

Up  to  the  time  of  the  Revolution,  judges  were  elected 
annually  from  the  people.  The  Newport  court  records  show 
us  the  extent  of  the  discretion  of  magistrates.  In  an  action 

1  Rhode  IsJand  Colonial  Records,  I,  198. 

3  Documents  Relative  to  Colonial  History  of  New  York,  IV,  600. 

'  Durfee,  Gleanings  from  the  Judicial  History  of  Rhode  Island,  p.  78. 


390  ///.     THE    COLONIAL    PERIOD 

for  debt  the  court,  considering  the  defendant's  poverty, 
ordered  him  to  work  for  the  plaintiff  at  carpentry  until  the 
debt  were  extinguished.  Meanwhile  other  creditors  were  for- 
bidden to  sue  him.  Even  after  a  verdict  of  not  guilty,  the 
court  often  imposed  costs  or  ordered  the  accused  to  leave  the 
colony.1  The  attitude  of  Rhode  Island  towards  lawyers  is 
shown  by  the  fact  that  by  an  act  of  the  general  assembly  in 
1729  they  were  forbidden  to  be  deputies,  their  presence  being 
found  to  be  of  ill  consequence.2 

H.    THE    MIDDLE    COLONIES 

New  York 

In  this  colony  the  common  law  received  early  recognition 
and  an  approach  was  made  to  complete  and  intelligent  en- 
forcement. The  population  of  New  York  was  exceedingly 
heterogeneous ;  the  original  Dutch  settlers,  the  early  Eng- 
lish settlers  of  various  character  from  the  different  colonies 
and  the  mother  country.  The  close  knit  social  relations 
found  in  Massachusetts  and  Connecticut  were  here  absent, 
and  popular  law  could  not  therefore  be  so  readily  developed. 
There  was  a  demand  for  a  system  of  common  law  by  which 
the  relations  and  interests  of  these  various  elements  may  be 
regulated.  The  colony  being  under  royal  authority  almost 
from  the  beginning,  its  rulers  soon  accustomed  it  to  the  prin- 
ciples of  the  English  common  law.  Thus  when  the  growing 
feeling  of  unity  and  nationalism  called  for  a  unification  and 
harmonizing  of  American  law,  New  York  state,  which  had 
most  successfully  adapted  the  common  law  to  American  con- 
ditions, became  the  leader  in  juristic  development.  Its 
judges,  like  Kent,  became  the  authoritative  expounders  of 
the  American  form  of  the  common  law.  But,  on  the  other 
hand,  many  of  the  original  American  ideas  in  jurisprudence, 
such  as  the  reform  of  the  law  of  real  property  and  the  law 
of  pleading,  which  we  find  in  germ  in  the  early  history  of 
the  other  colonies,  were  carried  to  completion  and  given 

1Durfee,  Oleaningg  from  the  Judicial  History  of  Rhode  Island,  p. 
127-137. 

1  Arnold's  History  of  Rhode  Island,  II,  98. 


11.     REINSCH:  COLONIAL  COMMON  LAW   391 

their  lasting  form  in  the  state  of  New  York,  whose  jurists 
had  profited  from  a  longer  training  in  a  regular  system  of 
jurisprudence. 

We  must,  however,  by  no  means  conclude  that  the  common 
law  was  administered  in  New  York  from  the  very  beginning 
of  English  occupation  as  a  complete  subsidiary  system. 
The  feeling  that  for  a  new  colony  a  new  body  of  laws  is 
necessary  led  to  the  compilation  of  what  is  known  as  the 
Duke  of  York's  laws,  which  were  promulgated  a.t  an  in- 
formal assembly  at  Hampstead  in  1665.1  The  first  New 
York  legislature  met  in  1683,  and,  among  other  acts,  passed 
bills  regulating  the  judicial  proceedings,  and  for  prevent- 
ing perjuries  and  frauds.2  Governor  Nichols,  before  courts 
had  been  created,  took  upon  himself  the  decision  of  contro- 
versies and  pronounced  judgment  after  a  summary  hearing.3 
In  writing  to  Clarendon,  July  30,  1665,  he  says :  "  The  very 
name  of  the  Duke's  power  has  drawn  well-affected  men  hither 
from  other  colonies,  hearing  that  the  new  laws  are  not  con- 
trived so  democratically  as  the  rest."  4  At  this  time,  laws 
are  confirmed,  reviewed,  and  amended  by  the  general  assizes 
composed  of  the  governor,  the  general  council  and  the 
judges  upon  the  bench.  A  year  later,  April  7,  1666,  Nichols 
writes  to  Clarendon  5  remitting  a  copy  of  the  laws  collected 
from  the  laws  of  the  other  colonies  with  such  alterations 
as  would  tend  to  revive  the  memory  of  old  England ;  he  says 
that  "  the  very  name  of  Justice  of  the  Peace  is  held  an  abom- 
ination, so  strong  a  hold  has  Democracy  taken  in  these 
parts."  He  complains  of  the  refractory  disposition  of  the 
people,  and  describes  his  efforts  to  introduce  English  statutes 
and  authority.  It  is  apparent  from  this  correspondence 
that  it  was  considered  necessary  to  restate  the  law  in  a 
codified  form  for  the  use  of  the  colonists ;  and  an  informal 
transfer  of  the  common  law  in  its  original  "  unwritten  " 
character  was  evidently  not  considered  sufficient  or  suit- 
able to  the  circumstances  by  the  men  in  authority. 

1  Documents  Relative  to  Colonial  History  of  New  York,  III,  260,  416; 
IV,  1154. 

*Ibid.,  Ill,  35.5.          "Smith's  History  of  New  York,  55. 
*New   York  Historical  Society   Collections,  1869,  75. 
"Ibid.,  p.  118,  119. 


392  ///•     THE    COLONIAL   PERIOD 

Governor  Dongan  in  his  report  to  the  Committee  on 
Trade, 1  February  22,  1687,  gives  a  list  of  the  courts  of 
justice  established  at  that  time:  (1)  a  court  of  chancery 
composed  of  the  governor  and  council,  which  is  the  supreme 
court  of  appeals;  (2)  the  courts  of  oyer  and  terminer  held 
yearly  in  each  county;  (3)  the  court  of  the  mayor  and 
aldermen  in  New  "ifork;  (4)  the  courts  of  session  (justices 
of  the  peace);  (5)  court  commissioners  for  petty  cases; 
(6)  a  court  of  ad  judicature,  a  special  court  established  to 
hear  land  cases.  These  courts  had  none  of  the  popular  ele- 
ments which  we  have  noted  in  the  Puritan  colonies.  Go> 
ernor  Dongan  also  states  that  the  laws  in  force  were  the 
laws  of  the  Duke  of  York  and  the  acts  of  the  general  assem- 
bly, not  mentioning  the  common  law  in  this  connection.  In 
a  similar  report,  Governor  Nichols  2  states  that  "  all  causes 
are  tried  by  juries,  and  that  there  are  no  laws  contrary  to 
the  laws  of  England,"  while  he  ascribes  full  law-making 
power  to  the  court  of  assizes  (1669).  Governor  Andros 
reports  that,  "  He  keeps  good  correspondence  with  his  neigh- 
bors as  to  civil,  legal  and  judicial  proceedings."  Bellomont, 
in  1699,  sending  a  copy  of  the  printed  laws  to  the  council, 
asks 'for  a  careful  perusal  and  criticism  of  them  by  some 
able  lawyer  in  England;  which  would  indicate  the  absence 
of  trained  jurists  in  the  colony  at  that  time.3  In  a  report 
on  the  methods  of  proceedings  in  court,  William  Smith 
writes  to  Bellomont  in  1700 :  4  "  The  rules  and  methods  we 
are  governed  by  in  all  trials  is  the  common  law  of  England, 
and  the  several  statutes  declarative  thereof  according  to 
the  manner  and  methods  of  the  courts  at  Westminster."  In 
the  earlier  days  of  the  colony,  confused  notions  of  law 
and  equity  seem  to  have  prevailed;  and  in  a  number  of  re- 
ported cases  tried  on  Long  Island  after  verdict  of  the  jury 
there  was  an  appeal  to  equity,  most  generally  successful. 
No  settled  rules  were  here  regarded,  but  a  discretion  sim- 
ilar to  that  of  the  New  England  magistrates  was  exer- 

1  Documentary  History  of  New  York,  I,  147. 

1  Documentary  History  of  New  York,  I,  87. 

»  Documents  Relative  to  Colonial  History  of  New  York,  IV,  520. 

*  Ibid.,  VIII,  28. 


11.     REINSCH:  COLONIAL  COMMON  LAW   393 

cised.1  In  one  of  these  cases  the  judgment  is  said  to  be  given 
according  to  law  and  good  conscience.2 

Immediately  upon  the  occupation  by  the  English,  the  jury 
came  into  use  in  New  York.  Jury  trials  are,  however,  at 
first,  very  informal,  more  after  the  manner  of  a  simple  arbi- 
tration, and  verdicts  are  often  given  in  the  alternative. 3 

In  the  form  of  testamentary  disposition  the  Roman  Dutch 
law  of  the  New  Netherlands  left  abiding  traces.  The  method 
of  making  wills  by  oral  declaration  before  a  notary,  or  by 
a  written  and  sealed  instrument  deposited  with  that  official, 
was  used  long  after  the  first  English  occupation.4 

We  find  that  in  these  early  days  the  functions  of  the  court 
were  not  only  judicial  but  administrative,  much  like  those 
)f  the  earliest  itinerant  judges  in  England.  Thus  the 
judges  are  directed  to  make  inquiries  into  town  training, 
the  bearing  of  arms,  the  price  of  corn,  wages,  and  escheats.6 
As  another  reversion  to  older  practice,  we  may  note  the 
concentration  of  various  functions,  judicial,  administrative, 
and  legislative,  in  the  hands  of  the  colonial  council  of  the 
earliest  time.  A  still  closer  analogy  to  mediaeval  English 
history  in  this  respect  we  shall  find  in  the  case  of  Pennsyl- 
vania. 

In  the  year  1700,  a  professional  English  lawyer,  Attwood, 
became  chief  justice  of  New  York.  It  was  his  avowed  pur- 
pose-to introduce  the  common  law  and  practice  of  the  Eng- 
lish courts  into  the  colony.  He  was,  however,  too  asserta- 
tive,  and  favored  strong  government  too  much,  so  that  he 
in  some  cases  perverted  the  law  to  his  own  uses,  as  when  he 
declared  that  whatever  was  treason  before  25  Edward  III. 
was  still  treason  at  common  law ;  6  or  when  he  held  that  a 
grand  jury  was  only  an  inquest  of  office  and  that  eleven 
could  indict.7  He  complained  in  a  letter  to  the  Lords  of 
Trade  8  that  "  several  here  cannot  well  bear  with  the  exe- 

1  Documents  Relative  to  Colonial  History  of  New  York,  XIV,  570, 
589,  600,  629. 

*  Underbill  vs.  Hempstead,  Ibid.,  589. 

*,  Fernow,  Records  of  New  Amsterdam,  V.  267ff. 

*  Fernow,  Calendar  of  Wills,  p.  IV.     For  other  traces  of  the  Dutch 
law,  see  Judge  Daly's  prefatory  note  in  1  E.  D.  Smith  (N.  Y.). 

"  Documents  Relative  to  Colonial  History  of  New   York,  XIV,  637. 

*  Ibid.,  IV,  974.  7    Ibid.,  1010.          •   Ibid.,  923. 


394  ///.     THE   COLONIAL   PERIOD 

cution  of  the  laws  of  England."  His  methods  soon  led  to 
his  unpopularity  and  his  final  disgrace. 

As  in  other  colonies,  lawyers  were  unpopular  in  the  early 
days  of  New  York.  "  The  general  cry  of  the  people  both  in 
town  and  country  was,  *  No  lawyer  in  the  Assembly ! '  "  l 
As  we  have  seen,  the  early  governors  exercised  what  was 
called  an  equity  jurisdiction,  but  no  regular  court  of  equity 
was  established.  In  1711,  Governor  Hunter  addressed  the 
Lords  of  Trade  in  this  matter.  He  speaks  of  the  necessity 
of  giving  equitable  relief  in  many  cases,  and  instances  the 
case  of  a  merchant,  who  inadvertently  confessed  judgment 
for  4,000  pounds,  the  real  debt  being  400  pounds,  and  who 
then  languished  in  prison.  He  says  that  the  House  declared 
that  the  trust  of  the  seal  constitutes  him  the  Chancellor, 
but  having  already  too  much  business  and  being  ignorant 
in  law  matters  he  asks  the  Lords  of  Trade  for  advice.2 
They  simply  answer  3  that  he  is  authorized  to  establish,  with 
the  consent  of  the  council,  any  court  that  may  be  necessary. 
A  court  of  chancery  was  accordingly  established,  but  in 
1727  the  assembly  resolved  that  the  creation  of  this  court 
without  its  consent  was  illegal.  Its  fees  were  reduced  and 
its  jurisdiction  languished  for  a  time.4  Golden  ascribes 
these  resolves  to  the  vindictive  intrigues  of  the  speaker,  who 
had  been  defeated  in  a  chancery  suit.5 

The  complete  doctrine  of  the  binding  force  of  the  common 
law  in  New  York  was  not  declared  before  1761.  A  most 
thoroughgoing  statement  is  found  in  Governor  Tryon's 
report,6  where  he  declares  that  "  the  common  law  of  England 
is  the  fundamental  law  of  the  province,  and  it  is  a  received 
doctrine  that  all  the  statutes  enacted  before  the  province 
had  a  legislature  are  binding  upon  the  colony ;  "  also  that 
in  the  court  of  chancery  the  English  practice  is  followed. 

Some  years  before,  in  1762,  Chief  Justice  Pratt,  in  a  memo- 

• 

1  Gov.  Colden  to  Hillsboro;  Documents  Relative  to  Colonial  History 
of  New  York,  VIII,  61. 

'Documents  Relative  to  Colonial  History  of  New  York,  V,  208.. 

» Ibid.,  252. 

*  Smith's  History  of  New  York,  270. 

•New   York  Historical  Society  Collections,  XVIII,  211. 

•1774;    Documentary  History  of  New  York,  I,  752. 


11.     REINSCH:  COLONIAL  COMMON  LAW   395 

rial  to  the  Lords  of  Trade,  complains  of  the  insufficient  in- 
fluence of  the  judiciary.  He  says  that  "  All  the  colonies 
being  vested  with  legislative  power,  their  systems  of  laws 
are  gradually  varying  from  the  common  law.  If  the  judg- 
ments of  the  supreme  courts  are  only  vague  and  desultory 
decisions  of  ignorant  judges  the  mischief  is  augmented,  and 
a  more  influential  and  better  paid  judiciary  is  called  for." 

New  Jersey 

The  two  parts  of  New  Jersey,  East  and  West  Jersey,  had 
a  different  social  complexion,  and  we  may  therefore  look  for 
divergent  views  on  the  subject  of  law.  West  Jersey  was  a 
pure  Quaker  commonwealth,  where  the  influence  of  Penn  was 
very  strong ;  while  in  East  Jersey  conditions  similar  to  those 
in  New  York  prevailed.  We  find,  however,  in  both  parts  of 
New  Jersey  a  system  of  popular  courts.  In  East  Jersey  l 
the  court  system  was  established  by  the  legislature  in  1675. 
A  monthly  court  for  the  trial  of  small  causes  was  held  in 
each  town  of  the  province  by  two  or  three  persons  chosen 
by  the  people.  County  courts  were  held  twice  yearly  in 
each  county ;  from  these  there  was  an  appeal  to  the  court 
of  chancery.  Proceedings  in  these  courts  were  of  the  utmost 
simplicity.  It  was  provided  that  any  person  might  plead 
for  himself  and  that  no  money  was  to  be  taken  for  pleading 
or  advice.2  West  Jersey  had  a  similar  system  of  courts, 
comprising  justices  of  the  peace,  county  courts,  and  a 
supreme  court  of  appeals ;  the  latter  was  instituted  in  1693 
and  a  final  appeal  from  it  to  the  general  assembly  was  au- 
thorized in  1699.  The  term  "  court  of  chancery  "  is  not  used 
in  West  Jersey.  The  power  of  the  jury  was  exaggerated, 
the  three  judges  having  no  authority  to  control  the  verdict 
of  the  twelve  men  "  in  whom  only  the  judgment  resides."  In 
case  the  judges  should  refuse  to  pronounce  judgment,  any 
one  of  the  twelve  by  consent  of  the  rest  may  do  so.3  Capital 
punishment  was  not  fixed  by  the  law.  It  was  enacted4  that 

1  Ornnts  and  Concessions,  p.  96. 
Mhid.,  p.  128.  'Ibid.,  p.  396. 

'  Grants  and  Concessions,  p.  404. 


396  ///.     THE    COLONIAL   PERIOD 

"  All  persons  guilty  of  murder  or  treason  shall  be  sentenced 
by  the  general  assembly,  as  they  in  the  wisdom  of  the  Lord 
shall  judge  meet  and  expedient."  This  would  indicate  a 
view  of  law  similar  to  that  held  by  the  colonists  of  Massa- 
chusetts and  New  Haven. 

The  early  laws  of  East  Jersey  were  founded  largely  on 
scriptural  authority. *  Thus  the  law  of  trespasses  and  in- 
juries by  cattle,  of  injury  by  fire,  of  negligence,  and  the 
criminal  law,  are  in  agreement  with  the  laws  of  the  Exodus. 
In  1675  imprisonment  for  debt  was  prohibited  except  in 
cases  of  fraud.  In  1698  the  privileges  of  the  English  com- 
mon law  were  assured  to  every  one.  In  Delaware  no  profes- 
sionally trained  judge  held  office  before  the  Revolution.2 

Pennsylvania 

The  colony  of  Pennsylvania  was  fitted  out  with  the  most 
complete  system  of  colonial  codes.  There  was  ( 1 )  the  frame 
of  government,  which  was  unchangeable  without  the  consent 
of  the  governor  and  six-sevenths  of  the  freemen  in  council 
and  assembly,  all  freemen  at  that  time  being  members  of  the 
assembly;  (2)  there  were  the  laws  agreed  upon  in  England 
in  1682,  which  had  the  same  provisions  as  to  alteration;  (3) 
the  Great  Law  or  body  of  laws  enacted  at  Chester  in  1682, 
containing  sixty-one  chapters  and  called  the  written  laws  to 
distinguish  them  from  the  foregoing  two,  called  printed  laws ; 
(4)  the  act  of  settlement  passed  in  Philadelphia  in  1683 ;  (5) 
the  laws  made  at  an  assembly  in  Philadelphia  in  1683,  consist- 
ing of  80  chapters;  (6)  the  frame  of  government  of  1683; 
(7)  the  frame  of  government  of  1696;  and,  finally,  (8)  the 
laws  of  October,  1701.  8  These  laws  are  of  great  interest  to 
the  student  of  legislation,  containing  the  opinions  of  enlight- 
ened and  thoughtful  statesmen  embodied  in  enactments  and 
gradually  modified  by  practical  experience  in  colonial  affairs. 
They  show  clearly  how  very  necessary  a  complete  and  full 

1  Whitehead,  East  Jersey  under  the  Proprietors,  p.  239. 

*  Grubb,  Judiciary  of  Delaware,  p.  9. 

8  See  the  collection  called  The  Duke  of  York's  Laws  and  Pennsyl- 
vania Colonial  Laws,  which  will  be  cited  simply  as  The  Duke  of  York's 
Laws. 


11.     REINSCH:  COLONIAL  COMMON  LAW   397 

statement  and  codification  of  the  law  that  should  prevail  was 
held  by  the  founders  of  Pennsylvania ;  that  they  did  not  rely 
on  an  informal  transfer  of  the  applicable  parts  of  the  com- 
mon law ;  but  that  they,  with  great  painstaking,  stated  in 
entirely  original  form  the  provisions  considered  necessary 
for  colonial  society. 

These  laws  contain  many  new  and  far-reaching  reforms. 
Thus,  in  the  laws  agreed  upon  in  England  in  1682  there  are 
the  following  provisions  concerning  procedure  in  the  courts. 
Persons  may  appear  in  their  own  way  and  according  to  their 
own  manner  and  personally  plead  their  cause ;  the  complaint 
shall  be  filed  in  court  fourteen  days  before  trial;  a  copy  of 
the  complaint  is  to  be  delivered  to  the  defendant  at  his  dwell- 
ing house ;  the  complaint  must  be  attested  by  the  oath  of  the 
plaintiff ;  *  all  pleadings  and  processes  and  reports  in  court 
shall  be  short  and  in  English  and  in  ordinary  and  plain 
character,  that  they  may  be  understood  and  justice  speedily 
administered.2  This  provision  antedates  by  almost  two  cen- 
turies the  celebrated  New  York  code-pleading  reform,  and 
this  clause  very  clearly  and  simply  states  the  object  this 
reform  sought  to  bring  about.  The  period  of  prescription 
for  the  acquisition  of  title  to  land  is  fixed  at  seven  years.3 
The  lands  and  goods  of  felons  shall  be  liable  to  make  satis- 
faction to  the  party  wronged.4  This  is  a  return  to  an  older 
idea  of  law,  which  at  that  time  did  not  prevail  in  the  English 
law;  for  a  felony  only  the  king  enforced  a  forfeiture,  the 
injured  party  could  not  obtain  any  satisfaction.  In  the  laws 
made  at  Philadelphia  in  1683,  there  is  contained  a  chapter 
enumerating  the  fundamental  provisions  which  are  to  be 
changed  only  by  the  consent  of  six-sevenths  of  the  council 
and  assembly ;  this  early  attempt  to  separate  the  f unda- 
^mental  from  the  secondary  provisions  of  the  law  is  of  great 
interest  to  students  of  American  constitutional  development. 
The  subjects  referred  to  as  fundamental  are  the  following: 
Liberty  of  conscience,  naturalization,  election  of  representa- 
tives, taxes,  open  courts  and  freedom  of  pleading,  giving  evi- 
dence, return  of  inquest  and  judgment  by  inquest  (jury), 

1  The  Duke  of  York's  Laws,  Laws  of  1682,  Chap.  6. 
1  Ibid.,  Chap.  7.      s  Ibid.,  Chap.  16.        « Ibid.,  Chap.  24. 


398  ///.     THE    COLONIAL   PERIOD 

bail  and  liberty  of  person,  registry,  marriage,  speedy  justice, 
the  use  of  the  English  language  in  laws  and  proceedings. 

The  proceedings  of  the  earliest  courts  were  quite  informal. 
We  have  some  accounts  of  trials,  before  the  coming  of  Penn, 
under  the  Duke's  laws  which  provided  for  a  jury  of  six  or 
seven.  The  major  part  of  this  jury  could  give  in  a  verdict. 
An  informal  statement  of  the  matter  at  issue  was  made,  and 
though  the  names  of  actions  were  used,  there  was  no  sharp 
discrimination  and  not  even  the  distinctions  between  civil 
and  criminal  cases  were  clearly  drawn.  The  administration 
of  justice  was  rather  founded  upon  the  ideas  of  the  magis- 
trates than  on  any  rules  of  positive  law.1  Lord  Petersboro, 
during  his  visit  to  Pennsylvania,  was  astonished  at  the  sim- 
plicity and  fewness  of  laws,  the  absence  of  lawyers  and  the 
informality  of  judicial  proceedings.2 

County  courts  were  instituted  in  the  territory  later  called 
Pennsylvania  in  1673.  The  procedure  was  informal,  juries 
of  six  or  seven  were  in  use.3  Under  the  new  regime,  the 
jurisdiction  of  courts  was  defined  by  the  laws  of  1683,  Chap. 
70,  and  in  1684,  courts  were  given  jurisdiction  in  equity  as 
well  as  in  law.4  The  same  court  even  reversed  in  equity  its 
own  judgment  in  law.5  Against  this  method  the  assembly 
complained.6  In  a  number  of  the  courts,  the  names  of 
English  actions  were  used,  but  case  was  often  substituted  for 
ejectment.1  The  practice  was  very  much  like  modern  code 
practice ;  the  complaint  was  filed  fourteen  days  before  trial ; 
ten  days  before,  the  defendant  had  to  be  summoned,  arrested 
or  his  goods  attached.  In  court,  he  might  answer  in  writing ; 
the  pleadings  were  to  be  in  the  English  language;  any 
defense,  legal  or  equitable,  might  be  interposed.18  Thus  from 

'See  Pennsylvania  Archives,  vol.  VII,  pp.  725-730;  The  Duke's  Laws, 
462;  Memoirs  of  the  Historical  Society  of  Pennsylvania,  vol.  VII; 
Dr.  Geo.  Smith's  History  of  Delaware  County. 

'I  Spencer's  Anecdotes,  155,  quoted  in  Pennsylvania  Bar  Association 
Reports,  I,  229. 

1  Duke's  Laws,  414. 

4  Ibid.,  167. 

•  Hastings  vs.  Yarrall,  Records  Chester  County  Court,  1686. 
Votes  of  the.  Assembly,  I,  76. 

7  Sussex  County  Records,  1682,  quoted  in  Pennsylvania  Bar  Associa- 
tion Reports,  I,  362. 

8  Laws  of  1683,  Chap.  66;    Laws  of  1684,  Chap.  167. 


11.     RE1NSCH:  COLONIAL  COMMON  LAW   399 

the  first  legal  and  equitable  relief  was  administered  by  the 
same  courts  in  Pennsylvania.  By  the  laws  of  1683,  Chap. 
71,  an  informal  body  of  arbitrators,  called  peace-makers, 
was  instituted.  The  appellate  court  was  called  the  provincial 
court,  but  the  council  also  had  appellate  jurisdiction;  and  in 
connection  with  this  it  had  a  jurisdiction,  like  that  of  the 
permanent  council  of  the  mediaeval  English  kings  and  of  the 
Star  Chamber,  to  punish  maladministration  and  malfeasance 
on  the  part  of  powerful  officials.  *  As  the  English  Parliament 
of  the  time  of  Edward  III,  so  the  Pennsylvania  assembly 
petitioned  against  this  extraordinary  jurisdiction.  In  1701, 
it  requested  that  "  no  person  shall  be  liable  to  answer  any 
complaint  whatsoever  relating  to  property  before  the  gov- 
ernor or  his  council  or  in  any  other  place  but  the  ordinary 
courts  of  justice."  2 

Pennsylvania  at  this  early  period  effected  the  union  of 
equity  and  law  in  jurisdiction  and  in  practice,  a  method  that 
has  always  characterized  the  jurisprudence  of  that  state. 
The  voluminous  legislation  in  the  case  of  Pennsylvania  may 
be  due  to  the  fact  that  the  charter  granted  by  Chajles  II. 
declared  that  the  laws  of  property  and  of  crimes  in  the  prov- 
ince should  be  the  same  as  they  were  in  the  kingdom  of  Eng-' 
land,  until  altered  by  the  proprietor.  The  legislation  of  . 
Pennsylvania  covering  virtually  the  whole  field  of  property 
law  may  be  called  the  first  complete  codification  of  law  made 
in  America. 

Penn  himself  was  anxious  to  secure  the  services  of  trained 
lawyers.  In  a  letter  to  Logan  3  he  says  that  he  has  granted 
Roger  Mompesson  the  commission  of  chief  justice  and  he  ad- 
vises the  people  to  lay  hold  of  such  an  opportunity  as  no 
government  in  America  ever  had  of  procuring  the  services  of 
an  English  lawyer.  Mompesson,  however,  did  not  remain  in 
Pennsylvania  long;  he  went  to  New  York  where  he  became 
chief  justice,  being  appointed  by  Cornbury.  The  first  lawyer 
who  became  chief  justice  of  Pennsylvania  was  Guest,  in 
1701.4 

1  Pennsylvania  Colonial  Records,  I,  20,  79,  95,  96. 
'  Ibid.,  II,  37. 

8  Quoted  in  Field's  Courts  of  New  Jersey,  58. 
*  Penn  and  Logan  Correspondence,  I,  19,  48. 


400  ///•     THE    COLONIAL   PERIOD 

The  early  law  of  Pennsylvania  is  very  original  and  contains 
the  germs  of  many  developments  that  specially  characterize 
American  jurisprudence.  There  was,  in  this  colony,  from  the 
first  a  desire  for  settled  legal  relations,  which  finds  expression 
in  a  discussion  in  the  colonial  council  in  1689.  When  it  was 
there  proposed  that  in  doubtful  cases  the  magistrates  might 
apply  the  colonial  laws  or  the  common  law  at  their  discretion, 
this  was  held  too  uncertain,  and  the  sole  validity  of  the  laws 
of  Penn  was  upheld. 1  On  the  question  of  substituting  affir- 
mation for  oath,  numerous  English  law  precedents  were, 
however,  cited  by  the  assembly  to  the  governor. 2  The  law  of 
manslaughter  is  left  to  be  determined  by  the  law  of  England, 
in  1705. 3 

Maryland 

By  the  charter  of  Maryland,  full  powers  of  government 
were  given  to  the  proprietor.  He  might  establish  laws,  and 
was  not  required  to  submit  them  for  the  approval  of  the 
Crown.  He  could  establish  courts,  and  process  ran  in  his 
own  name,  and  he  was  empowered  to  grant  titles  of  nobility. 
He  stood  in  the  position  of  a  count  palatine.4  In  1635,  the 
'first  legislative  assembly  met,  passing  a  body  of  laws  which 
was  rejected  by  the  proprietor.  In  1637,  the  proprietor  and 
the  assembly  mutually  rejected  laws  proposed  by  each  other. 
This  caused  a  serious  dead-lock,  and  it  seemed  impossible  to 
create  a  code  of  laws  such  as  had  been  found  necessary  in  all 
the  other  colonies.  The  colonists,  accordingly,  in  the  absence 
of  a  code  of  positive  laws  claimed  that  they  were  governed  by 
the  common  law  of  England,  so  far  as  applicable  to  their 
situation.  The  proprietor  opposed  this  claim  on  account  of 
the  interference  with  his  rights,  and  the  controversy  thus 
arising  was  not  finally  settled  until  1732.  5 

The  rule  of  judicature  was  first  fixed  by  the  laws  of  1642, 
in  which  it  was  ordered  that  civil  causes  should  be  tried 
according  to  the  law  and  usage  of  the  province,  having  regard 

1  Pennsylvania  Colonial  Records,  I,  291. 

•  Ibid.,  II,  627.          »  Ibid.,  210. 

4  Brown,  Civil  Liberty  in  Maryland,  Maryland  Historical  Society 
Papers,  1850. 

•  McMahon's  History  of  Maryland,  Chap.  III. 


11.     REINSCH:  COLONIAL  COMMON  LAW   401 

to  the  former  precedents.  In  defect  of  such  law,  usage,  or 
precedent,  the  case  shall  be  determined  according  to  equity 
and  good  conscience  "  not  neglecting  (so  far  as  the  judge 
shall  be  informed  thereof  and  shall  find  no  inconvenience  in 
the  application  to  this  province)  the  rules  by  which  right  and 
justice  useth  and  ought  to  be  determined  in  England."  The 
common  law  of  England  seems  here  rather"  to  be  looked  upon 
as  a  system  useful  for  illustration  and  guidance  than  a  sub- 
sidiary law ;  equity  and  good  conscience  was  considered  to 
afford  proper  rules  to  fill  the  omissions  of  the  positive  law.  * 

The  rules  for  trial  were  in  many  respects  unusual.  The 
judge  is  allowed  to  administer  an  oath  to  either  party  in  a 
civil  cause,  and  on  the  refusal  of  the  party  to  testify  may 
proceed  as  if  the  matter  asked  had  been  confessed.2  The 
power  of  the  judge  in  controlling  the  jury  is  very  great.  If 
he  thinks  a  verdict  unjust  he  may  return  the  jury  or  charge 
another.  If  he  find  the  jury  evidently  partial  or  willful,  he 
may  charge  another  jury,  and  if  their  verdict  is  contrary 
the  first  jurors  may  be  fined.  Among  these  provisions  we 
also  find  one  of  the  earliest  exemption  laws.  Tobacco,  neces- 
sary clothing,  bedding,  utensils,  and  tools  are  exempt  from 
execution.3 

The  fettered  legislative  powers  of  this  colony,  the  unlimited 
discretion  allowed  the  governor  and  his  council  in  administra- 
tion, by  the  charter,  and  the  somewhat  heterogeneous  char- 
acter of  the  population,  led  the  colonists  later  more  strenu- 
ously to  insist  upon  the  observance  of  the  principles  of  the 
common  law  as  a  subsidiary  system.  Therefore  we  find  that 
in  1662  an  act  was  passed  declaring  that  when  the  laws  of  the 
province  are  silent,  justice  is  to  be  administered  according  to 
the  laws  and  statutes  of  England ;  and  that  "  all  courts  shall 
judge  of  the  right  pleading  and  the  inconsistency  of  the  said 
laws  with  the  good  of  the  province  according  to  the  best  of 
their  judgment."4  This  act  was  in  force  for  only  a  short 
time,  and  the  rule  of  judicature  was  therefore  not  long  estab- 

1  Archives  of  Maryland,  Proceedings  of  General  Assembly,  147. 
1  Ibid.,  p.  150.    This  practice  is  perhaps  taken  from  the  canon  law. 
3  Ibid.,  p.  152. 
*  Maryland  Archives,  Proceedings  of  Assembly,  p.  436. 


402  ///.     THE    COLONIAL    PERIOD 

lished  by  express  law.  It  is,  however,  the  first  definite  recog- 
nition in  America  of  the  power  of  the  courts  to  apply  the 
common  law  of  England  to  colonial  conditions,  and  to  reject 
provisions  deemed  unsuitable.  The  rule  stated  in  the  act  of 
1662  was  also  contained  in  the  commission  of  judges,  and  thus 
the  proprietor  seems  to  have  sanctioned  this  adoption  of  the 
common  law ;  the  later  controversy  turned  more  on  the  ques- 
tion of  the  adoption  of  the  statute  law  of  England. 

In  1674,  an  attempt  was  made  to  determine  by  law  what 
English  criminal  statutes  were  in  force  in  Maryland.  The 
lower  house  insisted  on  the  adoption  of  the  whole  English 
statute  law,  saving  all  laws  of  the  province  not  repugnant  to 
the  laws  of  England. 1  The  council  argued  with  the  lower 
house,  asking  them  to  consider  the  dangerous  consequences 
of  an  adoption  of  the  entire  English  criminal  law.  They 
referred  to  the  volume  of  the  English  laws  and  to  the  difficulty 
of  ascertaining  what  statutes  are  at  present  in  force.  On 
account  of  this  uncertainty  the  lower  house  is  requested  to 
designate  certain  statutes  which  are  to  be  re-enacted  and  thus 
be  a  guide  to  the  judges. 

In  1678,  we  find*  that  it  is  ordered  to  purchase  Keble's 
Abridgment  of  the  English  Statutes  and  Dalton's  Justice 
for  the  use  of  the  various  county  courts. 2 

The  struggle  between  the  proprietor  and  the  people  con- 
cerning English  laws  revived  in  1722.  The  people  claimed 
that  the  lord  proprietor  had  already  allowed  them  the  benefit 
of  the  common  law  as  their  right  according  to  the  common 
opinions  of  the  best  lawyers,  and  that  the  controversy  now 
was  only  concerning  the  applicability  of  the  English  statutes.3 
Lord  Baltimore  resisted  the  introduction  of  the  English 
statutes  "  in  a  lump,"  as  he  expressed  it,  as  doing  away  with 
his  veto  power ;  while  the  lower  house  insisted  upon  a  complete 
adoption.  By  the  act  of  1732  the  controversy  was  settled 
by  the  following  somewhat  equivocal  statement  that  "  when 
the  acts  and  usages  of  the  province  are  silent  the  rule  of 
ad  judicature  is  to  be  according  to  the  laws  and  statutes  and 

*  Maryland  Archives,  Assembly  Proceedings,  1666-1676,  p.  374. 
Maryland  Archives,  Proceedings  of  Assembly,  1678-83,  p.  70. 
See  citations  in  McMahon's  History  of  Maryland,  Ch.  III. 


11.    REINSCH:   COLONIAL   COMMON  LAW    403 

reasonable  customs  of  England,  as  used  and  practiced  within 
the  province."  *  However,  the  power  of  the  courts  to  apply 
any  English  law,  customary  or  statutory,  which  they  found 
suitable  to  American  conditions  was  no  longer  disputed. 

The  opposition  to  lawyers  common  in  the  colonies  we  also 
find  in  Maryland.  2  The  great  influence  which  the  theory  of 
the  adoption  of  the  common  law  gave  to  the  courts  was  recog- 
nized in  a  resolve  in  1684,  which  stated  "  that  it  left  too  much 
to  discretion  and  is  an  open  gap  to  corruption."  At  this 
time,  however,  the  lord  proprietor  insisted  that  if  the  English 
laws  were  to  be  used  the  governor  and  chief  justice  must  be 
allowed  to  decide  when  they  ought  to  be  applied.  Only  on  this 
basis  would  he  consent  to  a  re-enactment  of  the  judicature 
act.4  The  attitude  of  the  people  toward  the  proprietor  is 
further  illustrated  by  the  fact  that  an  appeal  to  the  king  in 
legal  proceedings  was  asked  for. 5 

Although,  even  in  the  earlier  practice  of  Maryland,  the 
terms  of  English  law  were  used,  its  principles  were  often 
entirely  neglected,  and  matters  settled  according  to  a  rough 
equity.6  Thus,  in  a  case  of  homicide,  the  jury  brought  in  a 
verdict  finding  accidental  killing  and  no  negligence;  the 
court,  however,  fined  the  person  who  had  handled  the  weapon 
that  caused  the  accident.7  In  another  criminal  proceeding 
the  accused  is  arraigned  and  pleads  guilty  before  the  grand 
jury  passes  on  the  indictment  and  finds  it  billa  vera.8 


HI.    THE    SOUTHERN    COLONIES 

Virginia 

The  prevailing  belief  that  codes  of  law  are  necessary 
for  new  colonies  is  evidenced  by  Crashaw's  sermon  preached 
before  the  London  Company  in  February,  1609-10.  Crashaw 

1  McMahon's  History  of  Maryland,  p.  127. 

*  Proceedings  of  Assembly,  II,  168. 

*  Maryland  Archives,  Proceedings  of  Assembly,  1684-1692,  p.  71. 

*  Maryland  Archives,  Lower  House  Journal,  1676-1702,  q.  107. 

*  Maryland  Archives,  Proceedings  of  Council,  II,  140. 

*  Maryland  Archives,  Provincial  Court. 

7  This  recalls  the  early  principle  that  the  possessor  or  even  the  owner 
of  the  weapon  by  which  the  injury  was  caused  is  responsible. 

8  Ibid.,  p.  183. 


404  ///.     THE    COLONIAL    PERIOD 

said :  "  Be  well  advised  in  making  laws,  but  being  made  let 
them  be  obeyed,  and  let  none  stand  for  scare-crows,  for  that 
is  the  way  at  last  to  make  all  to  be  condemned."  l 

The  instruction  for  the  government  of  the  colonies  2  fixed 
general  rules  for  the  descent  of  lands,  criminal  law,  jury 
trials,  and  placed  civil  jurisdiction  in  the  hands  of  the  gov- 
ernor and  council.  The  first  code  intended  for  the  colonies, 
printed  at  London  in  1612,  and  entitled  Laws  Divine,  Moral 
and  Martial,3  was  exceedingly  severe,  and  Sir  Thomas  Smith, 
the  governor,  was  later  much  abused  for  having  introduced  it 
into  Virginia.  On  account  of  the  character  of  the  population 
a  strict  rule  was,  however,  absolutely  necessary.  In  1620, 
an  attempt  was  made  by  the  London  company  to  compile  a 
more  adequate  and  humane  code.  Sir  Edwin  Sandys  proposed 
the  appointment  of  several  committees  for  the  following  pur- 
poses: (1)  compiling  the  laws  of  England  suitable  for  the 
plantation;  (2)  collecting  the  orders  and  constitutions 
already  in  existence;  (3)  revising  the  laws  passed  by  the 
Assembly.  These  committees  were  finally  to  meet  and  har- 
monize the  entire  body  of  laws  which  was  then  to  be  submitted 
to  the  king.  Among  the  commissioners  was  John  Selden.4 
These  committees,  however,  did  not  report  and  Governor 
Yeardley  asked  for  authority  to  make  a  collection  of  suit- 
able laws.6 

The  first  legislative  assembly  of  Virginia  met  in  1619.  It 
passed  a  number  of  laws  and  petitioned  the  council  that  they 
would  "  not  take  it  in  ill  part  if  these  laws  passed  current  and 
be  of  force  until  we  know  their  further  pleasure  out  of  Eng- 
land, for  otherwise  this  people  would  in  a  short  time  grow  too 
insolent."  There  is  here  so  far  no  claim  of  the  immediate 
validity  of  English  laws'  in  the  colony,  and  all  parties  con- 
cerned seem  to  think  the  formation  of  a  new  code  adapted  to 
the  circumstances  of  the  settlers  necessary.  In  1631,  the  oath 
of  commissioner  of  monthly  courts  was  fixed  as  follows : 
'  You  shall  do  equal  right  to  poor  and  to  rich  after  your 

1  Brown,  Genesis  of  the  United  States,  p.  371. 
1  Ibid.,  pp.  368-71.          » Ibid.,  p.  528. 

«  Proceedings  of  the  Virginia  Company  of  London.     Virginia  Histor- 
ical Collections,  vol.  VII,  p.  55. 
8  Ibid.,  p.  55. 


11.    REINSCH:   COLONIAL   COMMON  LAW   405 

cunning,  wit  and  power  and  after  the  laws  and  customs  of 
this  colony,  and  as  near  as  may  be  after  the  laws  of  the  realm 
of  England."  1  There  was  not  in  Virginia,  as  we  have  noted 
in  many  of  the  other  colonies,  a  system  of  courts  whose  magis- 
trates were  elected  by  the  people.  The  county  courts  were 
presided  over  by  eight  or  ten  gentlemen  receiving  their  com- 
mission from  the  governor.  Notwithstanding  the  source  of 
their  appointment,  these  men,  not  being  educated  in  law,  would 
perhaps  not  be  governed  by  considerations  much  different 
from  those  obtaining  in  the  popular  courts  of  Massachusetts 
and  Connecticut.  The  large  number  of  the  members  of  the 
court  gives  it  the  character  of  a  popular  tribunal,  recalling 
the  Doomsmen  of  the  Anglo-Saxon  courts,  who  declared  the 
custom  and  fixed  the  mode  of  trial.  Appeal  lay  from  these 
courts  to  the  general  court,  composed  of  governor  and  coun- 
cil. Their  jurisdiction  was  developed  by  custom  and  the  forms 
of  proceedings  were  quite  irregular.  They  also  exercised  a 
general  chancery  jurisdiction. 

By  the  statutes  of  1661-1662,  procedure  in  the  courts  was 
regulated.  At  the  time  of  the  Restoration,  Virginia  seems  to 
have  been  especially  anxious  to  show  herself  loyal  to  England, 
and  these  enactments  breathe  a  deep  respect  for  the  common 
law.  In  the  preamble  it  is  stated  that  the  legislature  has 
endeavored  in  all  things  to  adhere  to  these  "  excellent  and 
refined  laws  of  England  to  which  we  profess  to  acknowledge 
all  due  obedience  and  reverence."  As  a  reason  for  enacting 
laws  at  all  they  assign  the  vast  volume  of  the  English  law  from 
which  courts  would  be  unable  to  collect  the  necessary  prin- 
ciples without  the  aid  of  such  codification.2  The  former  laws 
are  repealed  and  a  new  code  is  enacted.  As  some  former  laws 
restrained  the  trial  by  jury  quite  contrary  to  the  laws  of 
England,  the  law  of  juries  is  restated  with  special  carefulness 
and  precision.  It  is  interesting  to  note  in  this  connection  that 
the  colonists  express  their  regret  that  they  are  unable  to 
comply  with  the  requirement  of  the  English  jury  system  that 
the  jurors  shall  come  from  the  immediate  neighborhood  of  the 
place  where  the  fact  was  committed ;  but  they  state  that  they 

1  Hening,  Statutes  at  Large,  vol.  I,  p.  169. 
1  Hening,  Statutes  at  Large,  vol.  II,  43. 


406  ///.     THE    COLONIAL    PERIOD 

desire  to  approach  as  near  as  possible  to  compliance  by  enact- 
ing that  six  men  of  the  ablest  and  nearest  of  the  inhabitants 
of  the  county  shall  be  on  the  jury.1  This  reminds  us  of  Sir 
John  Fortescue's  contention  that  France  could  not  have  the 
jury  system,  because  there  no  neighborhood  could  produce 
twelve  intelligent  and  substantial  jurors.  In  this  code  the 
period  of  prescription  for  land  is  limited  to  five  years. 2 

The  system  of  itinerant  judges  existed  in  Virginia  for  some 
time,  but  was  abolished  in  1662  on  account  of  the  great 
charge  to  the  country.3  The  nature  of  the  procedure  in  the 
county  courts  is  seen  from  the  provision  that  the  bill  or  com- 
plaint must  be  filed  the  day  before  court,  that  the  answer 
and  judgment  as  well  as  evidence  in  the  case  is  also  to  be 
filed,  that  the  judgment  is  to  be  endorsed  on  the  complaint  if 
for  the  plaintiff,  on  the  answer  if  for  the  defendant.4 

The  administration  of  law  in  Virginia  was  in  the  hands  of 
the  country  gentlemen  who  looked  down  upon  the  legal  pro- 
fession, and  in  no  state  do  we  find  more  hostile  legislation  con- 
cerning lawyers  than  in  the  Old  Dominion.  In  1645  an  act 
was  passed  expelling  the  mercenary  attorneys. 6  In  November, 
1647,  it  is  enacted  that  none  shall  plead  for  recompense. 
That  in  case  the  courts  shall  perceive  that  "  either  party  by 
his  weakness  shall  be  like  to  lose  his  cause,  they  themselves 
may  open  the  cause  or  may  appoint  some  fit  man  out  of  the 
people  to  plead  the  cause,  but  shall  not  allow  any  other  attor- 
neys." In  1656  the  hostile  acts  were  repealed,  but  only  a  year 
later  there  was  again  proposed  in  the  house  "  a  regulation  or 
total  ejection  of  lawyers,"  whereupon  the  decision  was  "  by 
the  first  vote  an  ejection."  '  A  new  act  was  therefore  passed ' 
forbidding  any  person  to  plead  or  give  advice  in  any  case  for 
reward.  The  governor  and  council  rather  opposed  this  enact- 
ment, but  promised  to  consent  to  the  proposition  "  so  far  as 
it  shall  be  agreeable  to  Magna  Charta."  A  committee  was 
appointed,  who  upon  considering  Magna  Charta,  reported 
that  they  did  not  discover  any  prohibition  contained  therein.8 
In  1728,  in  a  paper  on  the  state  of  the  colonies  in  America, 

1  Hening,  Statutes  at  Large,  vol.  II,  63. 

1  Ibid.,  97.         *  Ibid.,  II,  179.         4  Hening,  II,  71. 

8  Hening,  I,  482.         «  Hening,  I,  495.          T  Ibid.,  p.  482. 

•  NeilTs  Virginia  Carolorum,  p.  264. 


11.    REINSCH:   COLONIAL   COMMON  LAW    407 

Keith  gives  a  very  unfavorable  account  of  the  administration 
of  law  in  Virginia.  In  order  to  unify  and  settle  the  law  he 
favors  the  appointment  of  circuit  judges  from  England.1 
Governor  Gooch,  in  his  answer  to  Keith's  criticisms,  says  that 
the  practice  of  courts  is  exactly  suited  to  the  circumstances  of 
the  respective  governments  and  as  near  as  possibly  can  be 
conformable  to  the  laws  and  customs  of  England,  and  that  the 
judges  are  of  competent  knowledge  in  the  laws,  though  not  all 
of  them  profound  lawyers.2 

The  Carolinas 

In  the  case  of  the  Carolina  colonies  the  enforcement  of  a 
very  complete  code,  the  celebrated  Fundamental  Constitutions, 
was  attempted  by  the  proprietors.  These  Constitutions  were 
reactionary  in  the  extreme,  and  attempted  to  introduce  an 
intricate  feudal  system  into  the  new  colony.  The  redeeming 
feature  of  the  act  lies  in  its  very  liberal  provisions  concerning 
religious  affairs,  giving  any  body  of  believers  the  right  to 
worship  according  to  the  dictates  of  their  conscience.  It  is 
very  doubtful  if  aside  from  these  provisions  concerning 
religion  the  Fundamental  Constitutions  had  any  permanent 
influence  in  molding  the  jurisprudence  of  the  Carolinas. 
They  were  first  promulgated  in  1668,  and  were  reissued  in 
modified  forms  repeatedly  until  their  final  abandonment  in 
1698.  The  purpose  of  this  code  was  to  "  establish  the  inter- 
est of  the  proprietor  with  equality  and  without  confusion  that 
the  erecting  of  a  numerous  democracy  may  be  avoided." 

We  have  no  satisfactory  information  about  the  actual 
administration  of  justice  in  the  early  days  of  Carolina.  The 
different  colonies  in  the  Carolinas  had  originally,  however, 
very  little  in  common,  being  settled  by  various  elements.  And 
it  is  highly  probable  that  each  of  these  colonies  developed  at 
first  its  own  customary  and  popular  methods  of  dealing  with 
legal  controversies.4  The  Carolinas  were  among  the  earliest 

1  Byrd  Manuscripts,  1728,  p.  222. 
1  Ibid.,  p.  237. 

a  Fox  Bourne,  John  Locke,  p.  38 ;  and  Hawks,  History  of  North 
Carolina,  p.  182. 

4  Chalmers'  Political  Annals,  p.  521. 


408  ///.     THE    COLONIAL   PERIOD 

colonies  to  adopt  the  English  common  law  as  a  rule  of  adjudi- 
iture.  This  was  done  in  South  Carolina  by  the  act  of 
December,  1712. l 

Before,  in  1692,  the  assembly  in  an  address  to  Governor 
Ludwell  had  complained  because  "  the  Palatine  Court 
assumed  to  put  in  force  such  English  laws  as  they  deemed 
adapted  to  the  province;  but  the  assembly  conceived  that 
either  such  laws  were  valid  of  their  own  force,  or  could  only 
be  made  so  by  an  act  of  assembly."  The  proprietors  as- 
sumed that  all  laws  of  England  applied  to  the  colonies,  but 
in  1712  they  receded  from  their  position  by  approving  the 
act  adopting  the  common  law  and  such  statutes  of  England 
as  had  been  selected  by  Chief  Justice  Trott  as  applicable  to- 
the  condition  of  the  colony.3  The  act  of  1712  puts  in  force 
all  English  statutes  declaring  the  fights  and  liberties  of  sub- 
jects, as  well  as  the  common  law,  except  where  it  may  be 
found  inconsistent  with  the  customs  and  laws  of  the  prov- 
ince. The  law  concerning  military  tenures  and  ecclesiastical 
matters  is  especially  excepted.  The  courts  are  here,  as  in 
Maryland,  given  the  power  to  apply  the  principles  of  the 
common  law.  In  North  Carolina  the  same  object  was  ac- 
complished by  the  act  of  1715,  entitled  "  An  act  for  the 
better  observing  of  the  queen's  peace,"  which  declares  the 
colony  to  be  "  a  member  of  the  crown  of  England,"  and 
provides  that  the  common  law  shall  be  in  force  in  this  gov- 
ernment "  so  far  as  shall  be  compatible  with  our  way  of 
living  and  trade."  The  practice  of  issuing  writs  is  specially 
excepted.  Certain  enumerated  statutes,  such  as  the  statute 
confirming  the  privileges  of  the  people  and  security  of  trade, 
the  statute  of  limitations,  and  the  statute  of  frauds,  are 
also  adopted  by  this  act. 

From  the  scanty  records  of  the  early  days  of  the  colonies 
we  can  glean  that  the  proceedings  were  often  very  informal. 
The  discretion  of  the  magistrates  in  inflicting  punishment  was 
very  wide,  as  is  apparent  from  the  cases  cited  by  Hawks  in  his. 
history.4 

1  See  Robt.  Mills,  Statistics  of  South  Carolina,  p.  196. 
1  Rivers,  Historical  Sketch  of  South  Carolina,  p.  433. 
«  Statutes  of  South  Carolina,  II,  401. 
*  Hawks,  History  of  North  Carolina,  II,  122,  218. 


11.    REINSCH:   COLONIAL   COMMON  LAW   409 

A  court  of  chancery  was  established  as  early  as  1697,  in 
which  the  English  chancery  practice  was  in  the  main  adhered 
to.1  At  a  very  early  date  trained  lawyers  were  among  the 
judges  in  these  colonies ;  in  the  year  1729  we  find  that  on  the 
question  of  the  effect  of  a  general  pardon  an  English  case  2 
is  cited  and  followed  in  the  adjudication,  one  of  the  earliest 
instances  where  such  a  use  of  English  authorities  can  be 
ascertained. 

In  South  Carolina,  the  city  of  Charleston  was  for  almost  a 
hundred  years  the  seat  of  the  colonial  court,  the  source  and 
center  of  judicial  proceedings.  This  of  course  was  favorable 
to  an  earlier  reception  of  the  English  common  law,  as  a  cen- 
tralized system  of  judicial  administration  always  leads  to  a 
more  highly  developed  form  of  juristic  conceptions.  On  the 
other  hand  this  concentration  of  jurisdiction  had  the  effect  of 
leaving  large  tracts  of  the  colony  virtually  without  regular 
administration  of  the  law,  so  that  in  the  remoter  parts  of 
South  Carolina  associations  of  regulators  had  to  be  formed 
to  deal  out  a  rough  popular  justice.3 

Anthony  Stokes,  Chief  Justice  of  Georgia,  in  his  View  of 
the  Constitution  of  the  British  colonies  of  North  America  and 
the  West  Indies,  London,  1783,  gives  a  very  interesting  dis- 
cussion of  the  state  of  legal  administration  in  the  southern 
colonies.  He  states  that  the  colonies  where  the  system  of 
county  courts  prevailed,  where  there  were  a  large  number  of 
judges  in  general  unacquainted  with  the  law,  little  decorum 
was  observed  in  the  courts ;  but  the  colonies  where  the  judges 
of  the  superior  court  went  on  circuit  had  a  more  impartial 
administration  of  justice.  A  system  of  circuit  courts,  how- 
ever, was  not  established  in  the  colonies  in  the  17th  century, 
except  for  a  short  time  in  Virginia.  And  the  lack  of  a  har- 
monious, unified,  and  consistent  rule  of  adjudication  may  be 
inferred  from  the  one  fact  of  the  absence  of  a  unified  judi- 
ciary. Of  course  a  system  of  appeal  would  tend  to  unify  the 
law,  but  in  these  early  days  an  appeal  to  a  central  court  was 
by  no  means  an  easy  matter,  and,  in  the  ordinary  administra- 
tion of  justice  the  citizens  undoubtedly  took  their  law  from  the 

1  Hawks,  History  of  North  Carolina,  II,  134. 

*  2  Croke,  148.  »  Ramsay's  History  of  South  Carolina,  p.  120: 


410  ///.     THE    COLONIAL    PERIOD 

popularly  elected  magistrates  who  had  no  pretensions  to  a 
knowledge  of  technical  jurisprudence. 

Stokes  also  discusses  the  question  as  to  what  part  of  the 
English  common  law  the  colonists  had  brought  along  with 
them.1  His  answer  illustrates  the  vagueness  and  the  unhis- 
torical  character  of  the  legal  theory.  He  says  that  the  gen- 
eral rules  of  inheritance  and  personal  injuries  were  brought 
along ;  not,  however,  the  artificial  distinctions  and  refinements 
of  property  law,  the  laws  of  police  and  revenue,  etc.  Now  we 
have  seen  that  the  law  of  personal  injuries  was  usually  fixed 
by  the  codes  which  the  colonists  established  at  an  early  date, 
the  rule  of  inheritance  too  was  in  most  colonies  varied  from 
that  of  the  common  law;  and  certainly  an  adoption  of  any 
system  which  would  leave  out  property  law  could  be  styled  an 
adoption  only  in  a  very  modified  sense  of  the  term. 


IV.    CONCLUSION 

When  we  come  to  consider  from  a  more  general  point  of 
view  the  attitude  of  the  early  settlers  toward  the  common  law, 
we  find  that  certain  views  of  law  pervaded  all  the  colonies ; 
that  in  other  matters  the  various  colonies  followed  their  own 
bent  and  were  influenced  by  their  special  conditions  or  the 
special  purposes  of  their  polities.  A  general  trait  of  early 
colonial  law  is  codification.  It  seems  to  have  been  universally 
considered  necessary  to  state  the  essential  elements  of  law  for 
the  guidance  of  the  colonists  who  had  taken  up  their  abode 
in  a  wilderness  without  books  or  facilities  for  legal  study,  who 
therefore  in  the  nature  of  things  could  not  use  a  system 
which,  like  the  common  law  even  of  that  date,  necessitated  a 
vast  apparatus  of  technical  treatises,  of  reports,  and  of  stat- 
books.  In  all  the  colonies  except  Maryland  we  find  an 
early  codification  of  the  essential  elements  of  the  law.  In 
Maryland,  as  we  have  seen,  this  was  prevented  by  the  con- 
troversy between  the  people  and  the  proprietor,  but  even 
there  considerable  legislation  was  produced  at  an  early  date. 
Some  of  the  codes,  like  those  of  Massachusetts  and  Penn- 

1  Stokes,   View  of  the  Constitution  of  the  British  Colonies,  pp.  9,  10. 


11.    REINSCH:   COLONIAL   COMMON  LAW    411 

sylvania,  departed  in  many  essentials  radically  from  the 
principles  of  the  common  law,  and  show  that  their  framers 
consciously  desired  to  meet  the  entirely  novel  conditions 
of  the  colonists  by  new  and  appropriate  legal  measures. 
We  may  safely  say  that  these  codes  were  in  the  first  decades^ 
of  the  colonies  almost  the  sole  source  of  legal  knowledge, 
of  rules  for  adjudication.  As  to  matters  not  covered  by 
the  law  there  stated,  the  good  and  careful  discretion  of  the 
popularly  elected-  magistrates  or  appointed  judges  was  re- 
lied upon  to  furnish  a  just  rule  satisfactory  to  the  popular 
sense  of  right.  In  some  instances  we  have  noticed  the  use  of 
elementary  English  treatises  on  actions,  like  Dalton's  Justice, 
but  we  have  also  noticed  that  while  the  names  of  the  forms 
of  actions  were  used,  the  greatest  laxity  and  informality 
prevailed  in  their  application  and  in  the  general  practice 
of  the  popular  courts. 

Some  of  the  colonies  declared  the  English  common  law 
subsidiary  in  cases  not  governed  by  colonial  legislation,  at 
a  comparatively  early  date.  We  have  noted  this  in  the  case, 
of  Maryland,  Virginia  and  the  Carolinas.  But  other  col- 
onies very  early  made  unequivocal  declarations  establishing 
the  law  contained  in  Scripture  as  subsidiary  law  in  their 
system.  This  is  true  of  Massachusetts,  Connecticut,  and 
New  Haven  and  to  a  certain  extent  of  New  Jersey.  In 
both  cases,  however,  in  the  earlier  days  before  a  trained 
bench  and  bar  had  come  into  existence,  a  declaration  of  the 
existence  of  a  subsidiary  law  would  but  little  bind  the  other- 
wise unfettered  discretion  of  the  popular  judges;  because 
undoubtedly  these  judges  (like  the  Chancellor  in  Marks  vs. 
Morris,  4  Hening  and  Mumford,  463)  would  epitomize  the 
common  law  in  the  ancient  rule  of  "  honeste  vivere  "  and 
thus  apply  their  own  ideas  of  justice  until  called  to  account 
by  a  trained  bar,  which  arose  later,  during  the  18th  cen- 
tury. 

The  records  that  have  been  examined  exhibit  everywhere, 
especially  in  the  popular  courts,  a  great  informality  in 
judicial  proceedings.  The  large  number  of  judges  in  these 
courts  would  of  itself  tend  to  make  the  practice  informal, 
to  make  the  trial  more  like  a  deliberation  of  a  community 


412  ///.     THE    COLONIAL   PERIOD 

by  its  representatives  on  the  justice  or  injustice  of  the  case 
involved.  The  absence  of  a  jurist  class,  and  especially  the 
--universal  prejudice  against  lawyers,  proves  that  a  popular 
and  not  a  technical  system  was  being  enforced.  The  tech- 
nical knowledge  of  the  lawyer  was  not  in  demand,  and,  like 
Lechford,  the  lawyers  had  to  turn  their  hands  to  semi-pro- 
fessional or  non-professional  work,  the  courts  of  the  colonies 
at  that  date  having  no  need  of  the  aid  of  a  trained  profes- 
sion to  discover  what  was  the  law,  as  by  the  custom  of  the 
tnne  the  law  was  in  so  many  cases  determined  by  the  discre- 
tion of  the  court.  It  seems  just  to  conclude  that  usually 
the  administration  of  law  was  carried  on  not  according  to 
the  technical  rules  of  a  developed  system  of  jurisprudence 
but  by  a  popular  tribunal  according  to  the  general  pop- 
ular sense  of  right. 

The  original  elements  in  the  early  colonial  laws  are  great 
in  number  and  import.  They  foreshadow  and  anticipate 
some  of  the  most  far-reaching  American  law  reforms. 
Pleading  is  simplified,  and  the  intention  is  in  many  places 
expressed  that  it  shall  be  possible  for  any  man  of  ordinary 
intelligence  to  plead  his  own  cause  before  the  courts.  This 
innovation  supports  the  same  conclusions  that  we  have 
reached  from  the  facts  of  the  institution  of  popular  courts 
and  the  absence  of  trained  jurists.  Evidence  was  in  many 
colonies  given  in  writing,  or  at  least  taken  down  by  the 
— ^clerk  and  made  a  part  of  the  record  in  the  action;  a  prac- 
tice utterly  abhorrent  to  common  law  ideas,  not  so  to  the 
popular  mind  to  whom  the  evidence  is  the  most  important 
part  of  the  case.  Various  modifications  of  the  jury  system 
have  been  noted,  but  in  general  this  venerable  and  highly 
popular  institution  was  adopted  in  the  colonies  in  its  Eng- 
lish form  at  an  early  date.  The  period  of  prescription  was 
in  many  of  the  colonies  lowered  to  five  or  seven  years,  a 
change  that  was  of  course  eminently  consistent  with  the 
conditions  of  an  infant  colony  on  a  new  continent.  Execu- 
tions on  land  were  permitted,  and  in  many  cases  the  funda- 
mental distinction  between  real  and  personal  property  in 
the  English  law  was  obliterated  or  ignored.  The  laws  of 
inheritance  and  of  tenure  were,  as  we  have  seen,  very  ma- 


11.    KEINSCH:   COLONIAL   COMMON  LAW    413 

terially  modified,  very  often  leading  to  the  adoption  of  a 
system  totally  unlike  the  common  law  at  that  period. 

The  historian  will  be  interested  in  the  reversion  to  the 
more  ancient  customs  of  the  common  law  which  we  have 
ascertained  in  a  number  of  cases.  Such  are  the  bestowal  of 
judicial  functions  in  law  and  in  equity  on  the  councils,  pro- 
tests against  the  extraordinary  jurisdiction  of  which  recall 
the  history  of  the  jurisdiction  of  the  Great  Council  and 
Chancellor  in  England  in  the  13th  and  14th  centuries.  We 
have  seen  how  archaic  ideas  of  the  jury  were  given  a  new 
lease  of  life;  Georgia,  even  after  the  period  of  independ- 
ence, using  a  system  of  controlling  the  jury  that  was  mod- 
elled on  the  old  method  of  attaint.  The  idea  of  tort  liability 
for  crimes  was  revived,  an  idea  that  has  been  in  the  last 
decades  again  enforced  with  new  emphasis  by  our  legis- 
latures. But  the  most  important  and  interesting  revival 
of  older  institutions  is  found  in  the  popular  courts  com- 
posed of  a  comparatively  large  number  of  judges,  recalling 
the  twelve  thanes  of  early  English  law,  who  declared  law 
and  custom  in  a  simple,  straightforward  manner.  Men  here 
appear  to  plead  their  own  causes,  unassisted  save  by  the 
unremunerated  help  of  a  friend  or  by  the  court  itself.  The 
court  is  not  a  trained  judge,  drawing  his  knowledge  from, 
and  supporting  his  judgment  upon  the  accumulated  wisdom 
of  ages  of  legal  development,  but  a  popular  committee  rep- 
resentative of  the  people  and  enforcing  the  general  popular 
custom  and  sense  of  justice. 

We  have  also  noted  the  prevailing  views  on  the  nature 
of  law.  The  analytical  theory  of  Hobbes,  making  positive 
law  independent  of  moral  considerations  and  basing  it  on  a 
sovereign  will,  was  not  accepted  at  that  time.  The  law  of 
God,  the  law  of  nature,  was  looked  upon  as  the  true  law, 
and  all  temporal  legislation  was  considered  to  be  binding 
only  in  so  far  as  it  was  an  expression  of  this  natural  law. 
With  such  a  view  of  the  nature  of  legal  obligations,  it  does 
not  seem  strange  that  the  magistrates  should  look  for  the 
true  law  in  their  own  sense  of  right  and  justice,  or,  in  the 
Puritan  colonies,  in  the  word  of  God. 

The  views  of  the  common  law  when  expressed  are  of  the 


414  ///.     THE    COLONIAL    PERIOD 

most  rudimentary  and  incomplete  kind.  Ignorance  of  the 
system  is  often  most  frankly  confessed,  and  when  a  com- 
parison is  instituted  between  the  colonial  laws  and  the  com- 
mon law,  Magna  Charta  is  often  taken  as  a  complete  embodi- 
ment and  expression  of  the  latter.  This  is  true  not  only  in 
the  Puritan  colony  of  Massachusetts,  but  also  in  Virginia 
where,  when  it  was  to  be  decided  whether  an  act  was  contrary 
to  the  common  law,  the  committee  thought  it  sufficient  to 
examine  Magna  Charta. 

Among  the  early  colonists  we  therefore  find  a  very  clear 
perception  of  their  destiny  to  work  out  a  new  legal  system, 
to  establish  rules  dictated  by  their  special  polity  or  by  the 
conditions  of  primitive  and  simple  life  in  which  they  found 
themselves.  Respect  is  often  expressed  for  the  common  law, 
the  resolution  is  in  some  cases  even  formed  of  using  it  as 
a  model,  but  it  is  only  in  a  few  cases  clearly  established  as 
the  rule  of  judicature  and  in  still  fewer  instances  followed 
with  precision  in  the  ordinary  administration  of  the  law. 
The  colonial  codes  cover  the  more  essential  parts  of  the  law, 
leaving  cases  therein  not  anticipated  to  be  decided  by  the 
discretion  of  the  magistrates.  The  theory  of  the  transfer 
of  the  common  law  as  subsidiary  law  at  the  beginning  of 
the  colonies  is  therefore,  in  its  unmodified  form,  not  a  true 
statement  of  colonial  legal  relations.  We  cannot  under- 
stand the  history  of  our  law,  nor  justly  value  the  character- 
istic development  of  our  jurisprudence,  unless  we  note  the 
actual  attitude  of  the  earliest  colonists  towards  the  common 
law,  an  attitude  sometimes  of  apathy,  of  lack  of  under- 
standing, sometimes  of  resistance  or  ignorement,  sometimes, 
as  in  the  case  of  Maryland,  of  admiration  and  adherence 
from  the  first. 

It  has  been  said  that  the  colonists  imported  the  general 
principles,  the  general  system  of  reasoning  of  the  common 
law.  This  is  either  self-evident  or  too  indefinite  to  be  of 
any  historical  value.  It  is  certainly  true  that  ideas  of  right 
and  positive  law  develop  side  by  side  mutually  influencing 
and  reacting  upon  each  other ;  and  in  this  sense  the  English 
colonists,  in  their  general  ideas  of  justice  and  right,  brought 
with  them  the  fruits  of  the  "  struggle  for  law  "  in  England. 


11.    REINSCH:   COLONIAL   COMMON  LAW    415 

But  when  the  expounders  of  the  theory  attempt  to  descend 
to  particular  statements  of  these  general  principles,  they 
use  colorless  phrases  that  might  as  well  be  applied  to  any 
other  system  of  civilized  jurisprudence  as  to  the  common 
law.  And  when  we  apply  the  theory  to  the  facts,  we  find 
that  it  is  not  a  true  and  complete  statement  of  the  basis 
of  jural  relations  in  the  early  colonies. 

Most  of  the  colonies  made  their  earliest  appeals  to  the 
common  law  in  its  character  of  a  muniment  of  English  lib- 
erty, that  is,  considering  more  its  public  than  its  private 
law  elements.  In  the  18th  century,  with  a  more  jealous 
supervision  of  colonial  development  by  the  mother  country, 
the  introduction  of  law  books,  and  the  growth  of  a  trained 
bench  and  bar,  a  more  general  reception  of  the  private  law 
principles  of  England  is  brought  about. 

To  state  the  final  conclusion  arrived  at:  The  process 
which  we  may  call  the  reception  of  the  English  common 
law  by  the  colonies  was  not  so  simple  as  the  legal  theory 
would  lead  us  to  assume.  While  their  general  legal  con- 
ceptions were  conditioned  by,  and  their  terminology  derived 
from,  the  common  law,  the  early  colonists  were  far  from 
applying  it  as  a  technical  system,  they  often  ignored  it  or 
denied  its  subsidiary  force,  and  they  consciously  departed 
from  many  of  its  most  essential  principles.  This  is  but  nat- 
ural; the  common  law  was  a  technical  system  adapted  to 
a  settled  community ;  it  took  the  colonies  some  time  to  reach 
the  stage  of  social  organization  which  the  common  law  ex- 
pressed; then  gradually  more  and  more  of  its  technical 
rules  were  received.  * 

1  For  a  short  bibliography  by  the  author  of  this  Essay,  of  treatises, 
essays,  and  other  sources,  relating  to  Colonial  Law,  see  Volume  II  of 
these  Essays,  Topic  I,  "  Sources  and  Materials."  —  EDS. 


12.     THE     THEORY     OF     THE     EXTENSION     OF 
ENGLISH  STATUTES  TO  THE  PLANTATIONS » 

BY  ST.  GEORGE  LEAKIN  SioussAT2 

THE  rapid  expansion,  in  recent  years,  of  the  territory- 
belonging  to  the  United  States,  and  the  judicial  deter- 
mination, in  the  Insular  Cases,  of  the  relation  of  subject  peo- 
ples to  the  American  Republic  have  revived  a  question  as  old 
as  the  Constitution  itself.  This  latest  phase,  involving  pos- 
sessions disconnected  and  far  removed,  makes  us  readier  than 
before  to  examine  the  experience  of  other  colonizing  powers, 
especially  of  that  British  Empire  from  which  the  thirteen 
colonies  separated  themselves  by  the  Revolution.  At  the  pres- 
ent writing,  moreover,  the  modern  constitution  of  that  empire 
is  being  subjected  to  fresh  scrutiny  and  review,  through  the 
pressure  of  economic  problems  whose  solution  involves  to  the 
foundation  the  relation  of  Great  Britain  and  her  dependen- 
cies. But  since,  in  the  logic  of  history,  the  present  has  grown 
out  of  the  past,  a  study  which  carries  us  back  to  the  first 
building  of  that  imperial  system,  and  to  the  time  when  we 
were  part  of  it,  seems  to  be  not  unseasonable.  Therefore,  as 
our  last  chapter  was  local  in  its  point  of  view,  this  is  to  be 
imperial  in  its  outlook ;  and,  leaving  as  beyond  our  proper 
field  all  considerations  of  economic  relations,  we  shall  inquire 

1  These  passages  are  extracted  from  an  essay  on  "  The  English  Stat- 
utes in  Maryland,"  Johns  Hopkins  University  Studies  in  History  and 
Political  Science,  1903,  volume  XXI.,  being  c.  II.,  pp.  17-30. 

1  Professor  of  History  and  Economics  in  the  University  of  the  South, 
since  1904.  A.  B.  Johns  Hopkins  University  1896,  Ph.  D.  1899 ;  Instruc- 
tor in  History  in  Smith  College,  1899-1904. 

Other  Publications:  Highway  Regulation  in  Maryland,  1899;  Balti- 
more (Historic  Towns  of  the  Southern  States),  1900;  Economics  and 
Politics  in  Maryland  1730-1750  (Johns  Hopkins  Studies),  1903;  Vir- 
ginia and  the  English  Commercial  System  (American  Historical  Asso- 
ciation, vol.  I.),  1905. 

416 


12.     SIOUSSAT:   ENGLISH    STATUTES       417 

briefly  into  the  theories  held,  in  the  seventeenth  and  eight- 
eenth centuries,  by  English  judges  and  lawyers,  as  to  the 
legal  status  of  the  colonies,  and  especially  as  to  the  extension 
to  these  of  Statutes  of  the  British  Parliament.  Afterwards, 
for  the  purpose  of  comparison,  we  shall  review  the  experi- 
ences of  a  few  other  colonies,  which  involved  these  theories  or 
principles  similar  to  those  contested  in  Maryland. 

We  may  first  direct  our  attention  to  a  case  which  was 
decided  early  in  the  seventeenth  century,  as  a  result  of  the 
union  of  the  English  and  Scottish  monarchies  in  the  person 
of  James  I.  For  details  as  to  the  desire  of  James  to  secure 
for  his  Scotch  subjects  the  rights  of  citizenship  in  the  richer 
land  of  the  South,  and  the  general  history  of  the  "  Post-nati," 
we  must  refer  to  the  historical  writings  of  Gardiner  and 
Hallam,  and  here  direct  our  attention  to  a  test  case,  known 
as  Calvin's  Case,  made  up  in  connection  with  the  Post-nati 
decision  that  citizens  of  Scotland  born  after  James'  accession 
were  to  be  accounted  as  legally  naturalized  in  England.  In 
Calvin's  Case  the  Judges  enunciated  certain  opinions  as  to 
the  position  of  "  dependencies  "  with  relation  to  the  central 
government.  A  dependency,  they  held,  was  a  "  parcel  of  the 
Realm  in  tenure,"  and  Parliament  might  make  any  statute 
to  bind  such  dependency,  where  the  latter  was  definitely 
named;  but  without  such  special  naming  a  statute  did  not 
bind. 

At  the  same  time  the  judges  went  into  an  extended  classifi- 
cation of  the  dominions  dependent  on  the  British  Crown. 
These  they  divided  into 

1.  Christian  countries  to  which  the  laws  of  England  have 
been  given  by  King  or  by  Parliament. 

2.  Countries   which    come   to  the   King   through   inher- 
itance.    In  neither  of  these  can  the  King  "  change "  the 
laws. 

3.  Conquered  countries  inhabited  by  Christians.     Here 
the  laws  of  the  conquered  remain  in  effect  until  the  King 
changes   them,  —  which   is   entirely   within   his   prerogative. 

4.  Conquered  heathen  countries  at  once  lose  their  rights 
or  laws  by  the  conquest,  "  for  that  they  be  not  only  against 
Christianity,  but  against  the  law  of  God  and  of  nature. 


418  ///.     THE    COLONIAL    PERIOD 

contained  in  the  Decalogue."  As  to  these,  the  monarch  "  by 
himself  and  such  judges  as  he  shall  appoint,  shall  judge 
them  and  their  causes  according  to  natural  equity  .  .  . 
until  certain  laws  be  established  among  them."  l 

The  year  in  which  this  decision  was  rendered  (1607)  marks 
the  very  beginning  of  successful  English  settlement  in  North 
America ;  but  the  principles  then  formulated  were  put  into 
practice  especially  in  the  colonization  of  Ireland  in  this  and  in 
the  succeeding  reign.2  For  the  ends  of  this  paper,  it  is  to  be 
remembered  as  the  first  "  leading  case  "  that  declared  the 
distinction  between  conquered  and  settled  dependent  terri- 
tories, and  applied  a  different  rule  to  these  classes 
respectively. 

As  settlement  in  the  new  world  progressed,  and  governments 
of  one  form  or  another  were  established  by  royal  permis- 
sion, or  instruction,  we  find  all  the  charters  save  one  granting 
to  the  colonists  the  rights  o*f  English  citizens,  and  the  claim 
to  these  rights  maintained  by  the  inhabitants  of  every  colony, 
whether  in  possession  of  a  charter  or  not.  As  to  the  interpre- 
tation of  these  rights,  and  the  determination  of  their  extent, 
discussion  and  dispute  were  more  or  less  continuous.  Every 
colony,  however,  at  some  time  during  its  constitutional  his- 
tory had  to  face  this  question  of  the  relation  of  the  colonial 
law  to  the  legal  system  of  the  mother  country.  In  our  ordi- 
nary study  we  naturally  emphasize  the  history  of  the  English 

*7  Rep.  We  have  followed  the  analysis  in  Snow:  The  Administra- 
tion of  Dependencies.  The  case  was  almost  always  cited  whenever  the 
question  came  up.  Of  especial  interest  is  Lord  Mansfield's  brief  con- 
sideration of  it  in  the  Grenada  Judgment  (Campbell  v.  Hall),  1774. 
His  remarks  were  published  in  pamphlet  form  as  Lord  Mansfield's 
Speech  on  Giving  the  Judgment  of  the  Court  of  King's  Bench  ...  in 
the  Case  of  Campbell  v.  Hall  .  .  .  London,  1775;  A  New  Edition,  Cor- 
rected. He  calls  attention  to  the  "  absurd  exception,  as  to  pagans  .  .  . 
(which)  shows  the  universality  and  antiquity  of  the  maxim."  The 
earlier  history  of  these  principles,  before  Calvin's  Case,  lies  beyond  our 
discussion.  It  may  be  noted,  however,  that  they  belong  to  International 
Law. 

*The  frequency  of  reference  to  the  analogy  of  Ireland's  law  is  note- 
worthy. See  the  matter  upon  the  constitutional  development  in  Ire- 
land, "in  Hallam.  The  Constitutional  History  of  England,  ch.  xviii. 
Compare,  also,  I.  Blackstone's  Comm.  103-4;  Lord  Mansfield's  decision 
in  Campbell  v.  Hall,  quoted  above;  a  pamphlet  entitled  The  Privileges 
of  the  Island  of  Jamaica  Vindicated,  London,  1766  (rep.)  A  recent  dis- 
cussion of  this  whole  matter  is  found  in  Snow,  A,  The  Administration 
of  Dependencies,  chaps.  1-4. 


18.     SiOUSSAT:   ENGLISH   STATUTES      419 

colonies  on  the  Atlantic  coast  —  and  of  only  some  of  those 
—  but  occasionally  we  are  led  to  other  regions  for  our  best 
sources  of  information. 

The  next  important  judicial  decision  was  one  that  concerned 
the  colony  of  Jamaica.  The  whole  constitutional  development 
of  this  island  is  of  the  greatest  significance  in  American 
colonial  history,  and  far  too  little  attention  has  been  paid  to  it. 
In  this  connection,  especially,  certain  similarities  and  certain 
differences  render  very  interesting  a  comparison  with  Mary- 
land. 

The  case  of  Blankard  v.  Galdy  is  one  to  which  very  fre- 
quent reference  will  be  necessary.  The  matter  at  issue  was  a 
suit  on  a  bond,  and  involved  the  extension  of  an  English  Act 
to  Jamaica.  The  counsel  for  the  plaintiff  argued  that 
Jamaica  was  an  island  beyond  the  sea  conquered  from  the 
Indians  and  the  Spaniards  in  Queen  Elizabeth's  time1  [sic], 
that  the  inhabitants  were  bound  by  their  own  law,  and  that  as 
they  were  not  represented  in  Parliament,  so  they  could  not  be 
bound  by  English  statutes  unless  specially  named.  Statutes 
were  cited  —  among  them  5  Eliz.  ch.  4,  as  to  servants  — 
which  would  be  destructive  if  enforced  there,  and  others,  such 
as  the  Act  of  Usury,  which  does  not  apply,  "  for  they  allow 
them  more  for  the  loan  of  money  than  is  permitted  by  that 
law."  Several  Acts  of  Parliament  which  have  "  taken 
notice  "  of  Jamaica  are  cited. 

Then  is  adduced  the  Earl  of  Derby's  Case,  where  the  Court 
held  that  English  statutes  did  not  bind  the  inhabitants  of  the 
Isle  of  Man,  a  conquered  province,  unless  they  were  specially 
mentioned. 

Counsel  for  the  defendant  argued  contra  that  the  liberties 
lost  were  those  of  the  conquered;  those  that  conquer  cannot 
by  this  conquest  lose  their  laws,  which  are  their  birthright, 
and  which  they  carry  with  them  wherever  they  go.  Calvin's 
Case  is  then  cited,  with  emphasis  in  its  distinctions  between 
heathen  and  Christian  conquered  countries.  The  experience 

*The  Conquest  did  not  take  place,  of  course,  until  Cromwell's  time, 
in  1655.  An  attack  was  made  in  Elizabeth's  reign,  in  1596,  under  Shir- 
ley, but  this  was  not  followed  up.  See  Preface  to  The  Importance  of 
Jamaica  to  Great  Britain  Considered:  London,  1741?  This  tract  deals 
rather  lightly  with  Constitutional  History. 


420  ///.     THE    COLONIAL    PERIOD 

of  Ireland  is  used  to  point  out  an  analogy  between  that  and 
the  situation  of  Jamaica.1 

The  Court  held,  in  part : 

"  1.  In  case  of  an  uninhabited  country  newly  found  out 
by  English  subjects,  all  laws  in  force  in  England  are  in 
force  there:  so  it  seemed  to  be  agreed. 

"  2.  Jamaica  being  conquered  and  not  pleaded  to  be  par- 
cel of  the  Kingdom  of  England  but  part  of  the  possessions 
and  revenue  of  the  Crown  of  England,  the  laws  of  England 
did  not  take  place  there,  until  declared  so  by  the  conqueror 
or  his  successors.  .  .  ."  2 

That  Jamaica  was  alleged  to  be  a  conquered  country  caused 
upon  other  occasions,  some  of  which  we  shall  notice  later,  con- 
siderable difficulty  in  determining  the  legal  system  of  the 
island.  The  decision,  it  seems,  is  adverse  to  the  extension  of 
English  laws,  though  the  judges  did  not  lay  stress  on  the 
distinction  between  common  and  statute  law. 

A  clearer  statement  appears  in  the  opinion  of  the  Attorney- 
General,  West,  rendered  in  1720,  in  which  he  said: 

"  The  common  law  of  England  is  the  common  law  of  the 
plantations,  and  all  statutes  in  affirmance  of  the  common  law, 
passed  in  England  antecedent  to  the  settlement  of  a  colony, 
are  in  force  in  that  colony,  unless  there  is  some  private  Act 
to  the  contrary ;  though  no  statutes,  made  since  those  settle- 
ments, are  thus  in  force  unless  the  colonists  are  particularly 
mentioned.  Let  an  Englishman  go  where  he  will,  he  carries1 
as  much  of  law  and  liberty  with  him  as  the  nature  of  things 
will  bear."  8 

Nine  years  later,  in  connection  with  the  dispute  in  Mary- 
land, Sir  P.  Yorke,  then  Attorney-General,  gave  an  opinion 
on  the  same  subject,  which  affords  an  interesting  comparison 
with  that  of  West. 

"  Such  general  statutes  as  have  been  made  since  the  settle- 
ment of  Maryland,  and  are  not  by  express  words  located 
either  to  the  plantations  in  general  or  to  this  Province  in  par- 
ticular are  not  in  force  there,  unless  they  have  been  introduced 

1  See  below. 

*  4  Modern  215  if.     Salkeld  411. 

*  Chalmers'  Opinions,  Vol.  I.,  pp.  194-195. 


12.     SIOUSSAT:    ENGLISH   STATUTES       421 

and  declared  to  be  Laws  by  some  Acts  of  Assembly  of  the 
Province,  or  have  been  received  there  by  a  long  uninterrupted 
usage  or  practice  which  may  impart  a  tacit  consent  of  the 
Lord  Proprietary  and  of  the  people  of  the  colony  that  they 
should  have  the  force  of  a  law  there."  1 

The  modification  here  evident  was  without  doubt  a  reflection 
of  the  agitation  in  Maryland  to  which  we  shall  devote 
extended  discussion  hereafter. 

Passing  over  other  cases,  we  come  to  the  doctrine  of  the 
pre-revolutionary  period  as  summed  up  by  Blackstone,2 
who,  upon  this  subject  delivers  himself  as  follows: 

"  Besides  these  adjacent  islands  [Man  and  the  Channel 
Islands],  our  most  distant  plantations  in  America,  and  else- 
where, are  also  in  some  respects  subject  to  the  English 
laws.  Plantations  or  colonies,  in  distant  countries,  are  either 
such  where  the  lands  are  claimed  by  right  of  occupancy 
only,  by  finding  .them  desert  and  uncultivated,  and  peo- 
pling them  from  the  mother  country ;  or  where,  when  already 
cultivated,  they  have  been  either  gained  by  conquest  or 
ceded  to  us  by  treaties.  And  both  these  rights  are  founded 
upon  the  law  of  nature,  or  at  least  upon  that  of  nations. 
But  there  is  a  difference  between  these  two  species  of  col- 
onies, with  respect  to  the  laws  by  which  they  are  bound.  For 
it  hath  been  held  3  that  if  an  uninhabited  country  be  dis- 
covered and  planted  by  English  subjects,  all  the  English  laws 
then  in  being,  which  are  the  birthright  of  every  subj  ect  4  are 
immediately  there  in  force.  But  this  must  be  understood 
with  very  many  and  very  great  restrictions.  Such  colonists 
carry  with  them  only  so  much  of  the  English  law  as  is  ap- 
plicable to  their  own  situation  and  the  condition  of  an 
infant  colony.  Such,  for  instance,  as  the  general  rules  of 
inheritance,  and  of  protection  from  personal  injuries.  The 
artificial  refinements  and  distinctions  incident  to  the  prop- 
erty of  a  great  and  commercial  people,  the  laws  of  police 

1  Chalmers'  Opinions,  Vol.  I.,  p.  206.  Also  in  Calvert  Papers  (MS.) 
No.  52,  p.  14.  Chalmers  dates  this  March  9,  1729.  The  Jamaican  con- 
troversy referred  to  below  had  been  settled  in  the  meantime;  while  the 
controversy  in  Maryland  had  reached  its  height. 

*  Blackstone's  Commentaries  (3rd  ed.  Cooley)  Introduction,  sec.  4, 
p.  107. 

»  Refers  to  Salkeld  411,  666.          •  Refers  to  2  Peere  Williams  75. 


422  ///.     THE    COLONIAL    PERIOD 

and  revenue  (such  especially  as  are  enforced  by  penal- 
ties), the  mode  of  maintenance  for  the  established  clergy, 
the  jurisdiction  of  spiritual  courts,  and  a  multitude  of  other 
provisions,  are  neither  necessary  nor  convenient  for  them,  and 
therefore  are  not  in  force.  What  shall  be  admitted  and 
what  rejected,  at  what  time,  and  under  what  restrictions, 
must,  in  case  of  dispute,  be  decided  in  the  first  instance  by 
their  own  provincial  judicature  subject  to  the  revision  and 
control  of  the  King  in  council:  the  whole  of  their  Consti- 
tution being  also  liable  to  be  new  —  modeled  and  reformed 
by  the  general  superintending  power  of  the  legislature  in 
the  mother  country.  But  in  conquered  or  ceded  countries, 
that  have  already  laws  of  their  own,  the  King  may  indeed 
alter  and  change  these  laws,  but,  till  he  does  actually  change 
them,  the  ancient  laws  of  the  country  remain,  unless  such 
as  are  against  the  laws  of  God,  as  in  the  case  of  an  infidel 
country. 1  Our  American  plantations  are  principally  of  this 
latter  sort,  being  obtained  in  the  last  century  either  by 
right  of  conquest  and  driving  out  the  natives  (with  what 
national  justice  I  shall  not  at  present  inquire)  or  by  treaties. 
And  therefore  the  common  law  of  England,  as  such,  has  no 
allowance  or  authority  there,  they  being  no  part  of  the 
mother  country,  but  distinct,  though  dependent  dominions. 
They  are  subject,  however,  to  the  control  of  the  parliament, 
though  (like  Ireland,  Man  and  the  rest),  not  bound  by  any 
acts  of  parliament  unless  particularly  named." 

Lastly,  the  reader  is  referred  to  Mansfield's  decision  in 
the  case  of  Campbell  v.  Hall. 2  Here  the  same  general  prin- 
ciples were  stated  more  elaborately  in  six  propositions,  which 
need  not  be  quoted  at  length  upon  the  present  occasion,  as 
the  time  and  place  of  the  matter  at  issue  lie  too  far  from  the 
limits  described  for  this  paper. 

These  opinions,  judicial  decisions,  and  the  authority  of 
Blackstone  suffice  to  illustrate  the  legal  theory  with  which  we 
have  to  compare  the  claims  put  forth  by  the  Maryland  col- 
onists. With  the  cases  and  decisions  that  come  later,  and 

1  Refers  to  Calvin's  Case,  7  Rep.  17.  Shower's  Parliamentary  Cases 
31  (Dutton  v.  Howell). 

1  Cowper,  204.     See  also  the  pamphlet  mentioned  above,  p.  18,  n.  1. 


12.     SIOUSSAT:   ENGLISH   STATUTES      423 

with  the  modern  classification  of  the  British  colonial  system, 
we  are  not  here  concerned.1  It  must  be  remarked,  however, 
first,  that  the  opinions  we  have  quoted  show  a  process  of 
development,  and  some  lack  of  harmony ;  second,  that  while 
the  principles  as  to  extension  which  Blackstone  lays  down 
did,  in  American  courts  generally,  become  the  accepted  theory 
of  the  transfer  of  English  law,2  a  different  attitude  was  as- 
sumed towards  his  consideration  of  the  American  possessions 
as  conquered  territory;  and  thirdly,  that  as  Reinsch  has 
shown,  the  legal  theory  is  not  universally  supported  by  the 
actual  facts  in  the  legal  history  of  the  colonies.3 

As  we  have  not  undertaken  any  but  the  barest  statement  of 
this  legal  theory,  so  our  reference  to  the  experiences  of  other 
colonies  must  be  of  the  briefest.  While  in  every  group  of 
colonies  incidents  turned  upon  or  called  in  question  the  same 
points  as  the  Maryland  controversy,  and  although  no  com- 
plete discussion  of  this  part  of  the  subject  exists,  we  shall  on 
this  occasion  mention  only  two  or  three  such  happenings 
which  are  peculiarly  fitted  to  help  us  understand  the  more 
limited  field  that  we  have  chosen. 

In  1651.  the  Colony  of  Virginia  surrendered  to  the  Com- 
missioners of  the  Puritan  Government  in  England.  The  first 
article  of  capitulation  declares : 

"  It  is  agreed  and  const'd  that  the  plantation  of  Virginia, 
and  all  the  inhabitants  thereof,  shall  be  and  remain  in  due 
obedience  and  subjection  to  the  Commonwealth  of  England 
according  to  the  laws  there  established,  and  that  this  sub- 
mission and  subscription  be  acknowledged  a  voluntary  act 
not  forced  nor  constrained  by  a  conquest  upon  the  country, 
And  that  they  shall  have  and  enjoy  such  freedomes  and  priv- 
iledges  as  belong  to  the  free  borne  people  of  England,  and 

1  For  a  general  discussion  of  the  later  development  of  the  theory  see 
Burge,  W.:  Commentaries  on  Colonial  and  Foreign  Laws  Generally,  and 
in  their  conflict  with  each  other  and  with  the  Law  of  England,  London, 
1838.  Here  will  be  found  the  story  of  the  proclamations  of  1763  —  the 
Grenada  judgment,  etc.  For  Canada  and  the  Quebec  Case,  see  also 
Coffin:  The  Province  of  Quebec  and  the  early  American  Revolution. 
See  also  Egerton,  H.  E.:  A  Short  History  of  English  Colonial  Policy 
ch.  iv. 

*  Van  Ness  v.  Packard,  2  Pet.  137. 

8  Reinsch:  English  Common  Law  in  the  Early  American  Colonies, 
passim  [reprinted  in  this  Collection  as  Essay  No.  11]. 


424  ///'     THE    COLONIAL   PERIOD 

that  the  former  government  by  the  commissons  and  instruc- 
tions be  void  and  null."  * 

Here  seems  to  be  a  conscious  recognition  of  the  "  conquest  " 
idea  so  emphasized  in  the  decision  just  quoted.  In  Mary- 
land itself,  however,  we  have  a  still  clearer  example  when,  in 
1684,  in  a  debate  between  the  Houses  of  the  Assembly  over  the 
right  of  the  Speaker  to  issue  warrants  for  election  to  vacan- 
cies, the  Proprietor's  argument,  in  support  of  his  own  prerog- 
ative, that  "  the  King  had  power  to  dispose  of  his  conquests 
as  he  pleased,"  roused  the  ire  of  the  Lower  House,  which 
asserted  the  rights  of  its  members  as  based  on  their  English 
origin.  This  was  "  their  birthright  by  the  words  of  the  Char- 
ter." The  word  "  conquest  "  had  a  sinister  meaning  which 
they  resented,  and  they  hoped  that  the  words  were  the  result, 
not  of  the  Proprietor's  own  will,  but  of  strange  if  not  civil 
counsel.  The  Upper  House  at  once  explained  that  it  had  no 
idea  of  likening  the  freemen  of  the  Province  to  a  conquered 
people.2  The  discussion  indicates  that  in  Maryland,  before 
the  revolution  of  1689,  this  legal  theory  was  known  and  its 
application  of  this  principle  to  Maryland  denied. 

The  narrower  question  of  the  extension  of  the  English  stat- 
utes had  been  broached  in  many  other  plantations.  One  or  two 
instances  will  suffice  for  illustration.  In  1692  the  Assembly  of 
South  Carolina  passed  an  Act  authorizing  the  judicial  officers 
of  the  colony  to  execute  the  Habeas  Corpus  Act  —  an  Act 
passed  some  years  later  than  the  settlement  of  Carolina.  This 
the  Proprietors  disallowed,  however,  declaring  that  all  laws  of 
England  applied  to  the  colony,  and  holding  that  it  was  there- 
fore unnecessary  to  re-enact  that  famous  statute  in  their 
Province.  "  By  those  gentlemen's  permission  that  say  so,  it 
is  expressed  in  our  grants  from  the  Crown  that  the  inhabit- 
ants of  Carolina  shall  be  of  the  King's  allegiance,  which 
makes  them  subject  to  the  laws  of  England." 

Here  we  have  a  proprietary  Province,  of  a  constitution 
analogous  in  so  many  respects  to  Maryland,  in  controversy 

'Hening:  Statutes  at  Large  I.,  p.  363-4.  Cited  in  part  in  Snow: 
The  Administration  of  Dependencies,  p.  115,  and  as  a  whole  in  Hart: 
American  History  Toltl  by  Contemporaries  I.,  pp.  235-6. 

2  Sparks,  Causes  of  the'Maryland  Rev.  of  1689,  p.  82  Md.  Arch.  III. 
Ass.  Pro.  pp.  124-125. 


18.     SIOUSSAT:   ENGLISH   STATUTES      425 

over  this  same  matter ;  but  the  parties  we  find  taking  exactly 
opposite  positions  from  that  which  they  assumed,  respectively, 
in  Maryland.  However,  the  Proprietors  here  receded  from 
their  position,  and,  in  1712,  approved  an  Act  which  adopted 
the  English  common  law  and  such  statutes  as  were  deemed 
applicable  to  the  Constitution  of  the  Province.1  A  somewhat 
similar  law  was  passed  in  North  Carolina,  in  1715. 

Of  more  direct  bearing  upon  the  course  of  events  in  Mary- 
land is  the  experience  of  her  northern  neighbor,  Pennsylvania, 
where  legal  controversies  similar  to  that  which  we  have  to 
follow  in  Maryland  were  taking  place  just  a  few  years  before 
1722.  The  efficacy  of  the  English  statute  law,  in  comparison 
with  that  of  local  legislation,  came  up  in  connection  with  the 
unwillingness  of  the  Quakers  to  take  an  oath,  and  their  claim 
that  an  affirmation  was  equally  valid  for  legal  proceedings.2 

More  closely  analogous  to  the  issues  developed  in  Mary- 
land, however,  was  the  evolution  of  the  courts  of  judicature  in 
Pennsylvania.  In  the  course  of  a  contest  between  Governor 
Evans  and  the  Assembly,  the  former  issued  an  ordinance  to 
establish  courts;  in  which  the  judges  were  directed  to  hear 
and  determine  cases  "  as  near  as  conveniently  may  be  to  the 
laws  of  England,  and  according  to  the  laws  and  usages  "  of 
the  Province.  In  equity  cases,  they  were  to  "  observe  "  as 
near  as  may  be  the  practice  and  proceedings  of  the  High 
Court  of  Chancery  in  England.  Against  this  establishment 
of  courts  by  ordinance  the  Assembly  remonstrated,  but  to 
little  purpose,  and  the  quarrel  dragged  on  through  subsequent 
admftiistrations. 8  The  constitutional  points  in  dispute  lie 
without  the  scope  of  our  consideration,  but  the  reference  to 
the  laws  of  England  concerns  us  directly. 

Furthermore,  in   1718,  Governor  Keith  and  the  Council 
fell  out  over  the  commissions  of  the  judges.     Should  they  run 
in  the  name  of  the  Governor  merely  —  as  had  been  the  case  — 
or  should  they  not  rather  run  in  the  name  of  the  King,  with 

1McCrady,  E.:  The  History  of  South  Carolina  under  the  Proprietary 
Government  pp.  247-8,  517  ff.  Reinsch:  English  Common  Law,  pp.  49-50. 

2  Shepherd,  W.  R.:  History  of  Proprietary  Government  in  Pennsyl- 
vania, Columbia  University  Studies  in  History,  Economics  and  Public 
Law,  Vol.  VI.,  pp.  351-369. 

*  Shepherd:    Proprietary  Government  in  Pennsylvania,  pp.  386  ff. 


426  HI-     THE    COLONIAL   PERIOD 

the  Governor's  attestation?  In  supporting  the  latter  view, 
the  Governor  argued  that  the  judges  were  the  King's  judges; 
and  that  the  Proprietor  had  only  the  right  of  naming  them, 
and  he  argued  the  example  of  Durham,  where  by  Act  of  27 
Henry  VIII.  ch.  24,  the  power  of  appointment  was  taken 
from  the  Bishop  and  vested  in  the  Crown. 

"  In  reply,"  says  Shepherd,  "  the  Council  stated  that  the 
difficulty  had  arisen  in  not  distinguishing  the  difference  be- 
tween England  and  *  new  colonies  made  without  the  verge  of 
the  ancient  laws  of  that  Kingdom.'  As  the  King  could  give 
power  to  subjects  to  transport  themselves  to  the  dominion 
of  other  princes,  where  they  would  not  be  subject  to  the  laws 
of  England,  so  he  might  allow  them  to  go  to  any  foreign 
country  upon  any  conditions  he  might  choose  to  prescribe. 
Furthermore,  since  the  native  Indians,  who  inhabited  these 
newly  discovered  American  lands,  were  not  subject  to  the 
laws  of  England,  '  those  laws  must,  by  some  regular  method, 
be  extended  to  them,  for  they  cannot  be  supposed  of  their 
own  nature  to  accompany  the  people  into  these  tracts  in 
America  '  any  more  than  into  any  other  foreign  place.  The 
King,  by  his  charter,  had  given  the  proprietor  and  the  people 
full  power  to  enact  laws  not  repugnant  to  those  of  England, 
but  '  without  extending  any  other  than  such  as  were  judged 
absolutely  necessary  for  the  people's  peace  and  common 
safety  till  such  time  as  they  should  think  fit  to  alter  them.' ' 

Continuing,  they  urged  that  precedent  was  upon  their  side 
in  other  colonies  as  well ;  and  upon  this  occasion  Keith  yielded 
to  their  claims.1 

•  Thus  we  see  that  public  sentiment  was  on  the  side  against 
extension.  In  line  with  this  feeling,  the  Assembly,  in  1718, 
passed  an  Act  definitely  extending  several  English  penal 
statutes,  which  greatly  altered  the  milder  ideals  of  William 
Penn's  early  legislation.  The  necessity  for  this,  Shepherd 
suggests,2  was  the  advantage  taken  by  many  law-breakers  of 
the  privilege  of  affirmation  instead  of  swearing  oaths.  In  the 
passage  just  cited,  the  argument  was  not  technically  legal,  but 
in  the  preamble  to  this  Act  the  Assembly  said : 

1  Shepherd:  Proprietary  Government  in  Pennsylvania,  pp.  386-7. 
Mbid.,  pp.  388-389. 


12.     SIOUSSAT:  ENGLISH   STATUTES      427 

"  Whereas  it  is  a  settled  point  that  as  the  common  law  is 
the  birthright  of  English  subjects,  so  it  ought  to  be  their 
rule  in  British  dominions ;  but  Acts  of  Parliament  have 
been  adjudged  not  to  extend  to  these  plantations,  unless 
they  are  particularly  named  in  such  acts." 

Here  is  a  clear-cut  statement  of  the  "  orthodox  "  theory  as 
to  extension,  exactly  similar  in  tenor,  it  will  be  noticed,  to  the 
opinion  of  West  in  1720,  given  above.  Since  it  is  easy  to 
prove  that  contact  between  Maryland  and  Pennsylvania  was 
continuous,  and  that  the  politics  of  the  latter  exerted  a  decided 
influence  on  those  of  the  former,  it  is  not  unreasonable  to 
suppose  that  this  discussion  in  Pennsylvania,  which  occurred 
when  discussion  on  the  same  point  in  Maryland  was  inactive, 
had  something  to  do  with  the  revival  of  the  quarrel  in  Mary- 
land in  1722.  This  hypothesis  is  helped  by  the  emphasis  that 
we  shall  find  laid  by  Dulany  and  his  party  on  the  Commissions 
of  the  Judges.  It  is  the  more  remarkable,  as  the  latter 
argued  precisely  in  opposition  to  the  ideas  of  the  Council  in 
Pennsylvania. 

A  far  more  striking  analogy  appears  in  the  history  of 
Jamaica,  to  which  the  case  of  Blankard  v.  Galdy  has  already 
led  us.  We  found  it  there  claimed  and  adjudged  that 
Jamaica  was  a  conquered  Province ;  but,  as  we  might  suppose, 
the  English  inhabitants  of  the  island  denied  that  they  repre- 
sented the  conqueror.  The  military  seizure  of  the  island  and 
its  cession  by  Spain  did,  however,  introduce  this  additional 
complication  into  the  whole  of  Jamaica's  constitutional  his- 
tory. Moreover,  Jamaica  was  a  Crown  colony,  and  had  no 
charter.  The  instructions  and  proclamations  of  Cromwell 
and  of  Charles  II.  were  liberal,  however.  In  the  time  of  the 
latter,  especially  after  the  period  of  military  rule  had  reached 
a  conclusion,  the  progress  of  the  colony  towards  a  constitu- 
tional development  like  that  of  the  other  American  colonies 
was  constant.  But  in  1678,  upon  objections  by  the  lords  of 
the  Committee  for  Trade,  the  royal  government  rejected  some 
of  the  Jamaican  laws,  and  went  so  far  as  to  urge  that  the  laws 
for  the  island  must  be  made  in  England,  then  sent  to  Jamaica 

1  Shepherd :  Proprietary  Government  in  Pennsylvania,  p.  890. 


428  ///.     THE    COLONIAL   PERIOD 

for  passage  by  the  Assembly,  after  the  manner  of  Irish  legis- 
lation under  Poyning's  Law. 

This  reactionary  attempt  of  the  Crown  to  compel  the 
civilian  was  opposed  and  rejected  by  the  Jamaican  Assembly. 
Then  ensued  a  long  wrangle,  which  left  it  in  great  doubt  what 
laws  were  in  force  and  what  not.  A  temporary  agreement 
as  to  the  practical  difficulties  was  reached  in  1684.  But  the 
claim  of  the  colonists  to  the  English  laws  —  not  only  to  those 
passed  before  the  settlement,  but  to  some,  like  the  Habeas 
Corpus  Act,  passed  after  it  —  was  denied  by  the  King  in 
Council  and  by  the  courts. 

The  Jamaica  Assembly  went  farther  than  that  of  Mary- 
land, in  that  they  entangled  with  this  controversy  the  ques- 
tion of  levying  the  public  money,  and  refused  to  pass  a  law 
to  grant  a  perpetual  revenue  until  the  Crown  would  fully 
admit  the  rights  they  demanded.  This  the  Crown  for  a  long 
time  refused  to  do ;  but  at  last,  in  1728,  the  Assembly 

"  Settled  a  permanent  revenue,  not  burthensome  to  them- 
selves. ...  In  return  for  this  they  obtained  the  royal  con- 
firmation of  their  most  favourite  and  necessary  Acts  of  As- 
sembly, and  the  following  declaration  expressed  in  the  31st 
clause  of  this  revenue  Act : 

"  And  also  all  such  laws  and  statutes  of  England  as  have 
been  at  any  time  esteemed,  introduced,  used,  accepted  or 
received  as  laws,  in  this  island,  shall  and  are  hereby  declared 
to  be,  and  continue,  laws  of  this  his  majesty's  island  of 
Jamaica  forever ! 

"  This  clause  is  justly  regarded  by  the  inhabitants  as  the 
grand  charter  of  their  liberties,  since  it  not  only  confirmed  to 
them  the  use  of  all  those  good  laws  which  originally  planted 
and  supported  freedom  in  England,  but  likewise  of  all  the 
other  provisions  made  for  securing  the  liberty  and  property 
of  the  subject  in  more  modern  times ;  when,  upon  the  several 
overthrows  of  tyrannic  powers  in  that  Kingdom,  the  sub- 
jects' rights  were  more  solidly  fixed  on  the  rational  basis 
of  three  solemn  compacts  between  the  sovereign  and  people : 
at  the  Restoration  of  Charles  II.,  the  Coronation  of  the 
prince  of  Orange,  and,  lastly,  the  accession  of  the  House  of 
Hanover. 


12.    SIOUSSAT:  ENGLISH   STATUTES      429 

"The  little  clause  before  recited  has  cost  the  island,  in 
fifty  years,  about  £50,000,  the  net  income  of  the  revenue 
being  about  £10,000  per  annum.  Yet,  considering  the  un- 
speakable benefits  derived  by  them  in  virtue  of  this  compact, 
they  do  not  think  it  too  dear  a  purchase." 

Such  was  the  controversy  in  Jamaica,  thus  contempora~ 
neous  in  part  with  that  conducted  by  Dulany  in  Maryland. 
That  the  Jamaican  affair  was  studied  in  Maryland  will 
appear  below,  where  we  shall  find  the  Proprietor,  in  1724, 
citing  the  failure  of  the  Jamaicans  in  one  of  their  attempts 
to  get  their  English  laws.  Five  years  later,  in  the  Maryland 
Gazette,  a  letter  from  Jamaica  announces  the  probability  of 
an  agreement.  This  Act  "  has  been  at  home  near  a  year  "  and 
"  cannot  well  fail  of  being  cofirmed,  being  exactly  conformable 
in  the  substance  to  the  draught  sent  hither  from  home."  ; 

At  the  time,  therefore,  when  Dulany  began  his  decade  of 
agitation  in  Maryland,  there  was,  in  the  first  place,  a  theory 
or  tradition  established  in  the  English  courts ;  a  tradition 
not  yet  distinct,  but  approaching  definiteness.  Secondly, 
there  had  been  frequent  occasions  in  other  colonies  where  the 
relations  to  the  legal  system  of  the  mother  country  were  mat- 
ters of  dispute.  Lastly,  the  uncertainty  in  Maryland  was  as 
old  as  the  colony.  With  these  points  in  mind,  we  may  per- 
haps sympathize  with  "  An  American,"  who  in  "  An  Essay 
on  the  Government  of  the  English  Plantations,"  published 
at  the  beginning  of  the  eighteenth  century,  voiced  his  com- 
plaint that 

"  No  one  can  tell  what  is  law  and  what  is  not  in  the  plan- 
tations. Some  hold  that  the  law  of  England  is  chiefly  to 
be  respected,  and,  when  that  is  deficient,  the  laws  of  the  sev- 
eral colonies  are  to  take  place.  Others  are  of  the  opinion 

1  Long,  Edward:  The  History  of  Jamaica,  London,  1774,  Vol.  I.,  pp. 
219-20.  The  account  of  Jamaica  as  a  whole  is  based  on  the  Appendix 
to  the  Tenth  Chapter  of  Long's  very  valuable  work;  on  a  pamphlet  en- 
titled The  Privileges  of  the  Island  of  Jamaica  Vindicated  —  reprinted 
in  London,  1766,  with  an  appendix;  and  on  the  opinion  of  Yorke  and 
Wearg,  the  Attorney  and  the  Solicitor-General,  as  to  the  legal  constitu- 
tion of  Jamaica  in  1722-25,  Chalmers'  Opinions  (Colonial,  Edition  of 
1814,  Vol.  I.,  pp.  204-224).  See  also  Lord  Mansfield's  decision  in  Camp- 
bell v.  Hall. 

•Maryland  Gazette,  June  10-17,  1729.  The  Jamaican  letter  is  dated 
March  5. 


430  ///.     THE    COLONIAL    PERIOD 

that  the  laws  of  the  Colonies  are  to  take  the  first  place  and 
that  the  laws  of  England  are  in  force  only  where  they  are 
silent.  Others  there  are  who  contend  for  the  laws  of  the 
colonies,  in  conjunction  with  those  that  were  in  force  in 
England  at  the  first,  settlement  of  the  colony,  and  lay  down 
that  as  the  measure  of  our  obedience,  alleging  that  we  are 
not  bound  to  observe  any  late  acts  of  parliament  in  England 
except  such  only  where  the  reason  of  the  law  is  the  same  here 
that  it  is  in  England."  l 

1  Quoted  in  Lincoln :  The  Revolutionary  Movement  in  Pennsylvania, 
pp.  117-118.  Compare  also  the  section  on  the  Civil  Jurisdiction  in  a 
Short  Discourse  on  The  Present  State  of  the  Colonies  in  America.  This 
pamphlet  is  No.  6  in  A  Collection  of  Papers  and  Other  Tracts,  by  Sir 
William  Keith,  London,  1779  (2nd  ed.).  This  pamphlet,  No.  6,  was  pre- 
sented to  the  King  in  1728,  and  thus  is  contemporary  with  the  struggles 
in  Maryland  and  in  Jamaica. 


13.  THE  INFLUENCE  OF  COLONIAL  CONDITIONS 
AS  ILLUSTRATED  IN  THE  CONNECTICUT 
INTESTACY  LAW1 

BY  CHARLES  McLEAN  ANDREWS  2 

rMHE  colonial  era  of  our  history  has  generally  been  treated 
-L  with  an  insufficient  appreciation  of  its  economic  forces, 
and,  in  consequence,  there  has  been  a  tendency  to  minimize 
the  importance  of  certain  periods  of  that  history  which  show 
little  political  activity  and  are  to  the  world  at  large  dull  and 
uninteresting.  Such  a  period  is  the  first  forty  years  of  the 
eighteenth  century,  and  in  the  following  paper  I  hope  to  show 
why  I  think  that,  from  the  point  of  view  of  the  English 
policy  toward  the  colonies  and  their  economic  development, 
this  period  will  in  the  future  stand  much  higher  in  the  esti- 
mate of  historians  than  it  does  now.  The  discussion  that 
follows  involves  a  number  of  points  of  law,  and  carries  us 
through  a  controversy  which,  although  of  immediate  impor- 
tance to  Connecticut  only,  was  of  exceeding  interest  to  all 
New  England,  and  indirectly  touches  the  general  subject 
of  colonial  history.  3 

1  These  passages  are  extracted  from  an  essay  on   "  The  Connecticut 
Intestacy  Law,"  Yale  Review,  1894,  volume  TIT.,  pp.  261-294. 

2  Professor  of   History  at   Bryn  Mawr   College,  since   1889,  and   at 
Johns   Hopkins   University.     A.  B.  Trinity  College    (Connecticut)    1884, 
A.M.,  1890;    Ph.D.  Johns  Hopkins  1889;    L.  H.  D.  Trinity  1905. 

Other  Publications:  The  River  Towns  of  Connecticut,  1889;  The  Old 
English  Manor,  1892;  The  Historical  Development  of  Modern  Europe, 
1896,  1898;  Contemporary  Europe,  Asia,  and  Africa,  1891-1902;  Guide 
to  the  Materials  in  British  Archives  for  American  Colonial  History 
(Carnegie  Institution),  1907-1908. 

8  My  attention  was  originally  directed  to  this  subject  by  the  publi- 
cation of  the  first  volume  of  the  Talcott  Papers  by  the  Connecticut 
Historical  Society  and  the  remarks  of  Judge  Mellen  Chamberlain  upon 
them  as  printed  in  the  Proceedings  of  the  Massachusetts  Historical 
Society,  March,  1893.  The  second  volume' of  the  Talcott  Papers  is  now 
in  press,  but  I  am  indebted  to  the  editor,  Miss  Mary  K.  Talcott,  a 
descendant  of  the  old  Connecticut  governor,  for  advance  sheets  as  far 
as  completed. 

431 


432  ///.     THE    COLONIAL   PERIOD 

The  starting  point  of  the  controversy  and  its  underlying 
cause  was  the  agrarian  system  of  New  England.  It  is  well 
known  to  students  of  the  subject  that  the  methods  employed 
in  the  division  of  lands  by  the  proprietors  of  the  various 
towns  involved  certain  principles  based  on  the  necessities  of 
a  new  country.  We  may  believe,  if  we  wish,  that  these 
methods  were  the  expression  of  deep-seated  racial  traits,  but 
it  is  more  rational  to  take  into  account  two  influences  only; 
first,  the  agrarian  environment  in  which  the  settlers  had 
been  reared;  and,  secondly,  the  conditions  and  necessities 
that  govern  the  settlement  of  a  new  and  uninhabited  country. 
These  two  considerations  will  concern  us  here. 

Those  who  settled  the  New  England  colonies  were  —  save 
in  .a  very  few  cases  —  men  of  the  burgher  and  freeholder 
class,  to  whom  the  detail  of  the  English  agricultural  life  was 
familiar.  They  had  been  inhabitants  of  towns  and  villages 
located  on  feudal  estates  and  subject  to  a  superior,  the  King 
or  the  lesser  lay  or  ecclesiastical  lord;  they  had  in  a  large 
number  of  cases  been  reared  in  the  midst  of  the  English 
agricultural  system,  of  which  the  village  community  with  its 
long  streets,  its  homesteads,  its  open  fields  divided  into  shots 
or  furlongs  and  subdivided  into  what  were  originally  acre 
and  half  acre  strips,  its  meadows,  pastures,  common  arid 
waste,  was  the  local  unit  and  that  part  of  the  system  with 
which  they  were  in  daily  contact.  To  this  system  that  of 
New  England  bears  a  striking  resemblance.  One  cannot 
compare  the  old  manor  maps  of  the  seventeenth  and  eight- 
eenth centuries  with  any  plan  based  upon  the  land  records 
of  a  New  England  town  without  feeling  that  the  similarities 
are  more  than  coincidences.  There  is  the  same  village 
street,  the  same  homestead  plots,  the  same  great  fields,  the 
same  shots  and  furlongs,  and  the  same  subdivision  into 
smaller  strips;  there  are  the  enclosed  meadows  held  by  a 
few,  the  pasture  and  the  waste  common  to  all,  and  there  are 
numbers  of  trifling  manners  and  customs  which  show  the 
English  origin.  It  was  the  local,  non-feudal  land  system 
which  was  transplanted  with  important  changes  to  New 
England,  and  formed  the  basis  of  the  law  of  real  property. 

But  were  we  to  be  satisfied  with  this  statement  of  the  case, 


13.     ANDREWS:   COLONIAL   CONDITIONS   433 

we  should  be  guilty  of  accepting  a  hasty  analogy.  There 
were  other  reasons  why  the  local  agrarian  system  of  England 
was  in  its  outward  form  reproduced  by  the  New  England 
„  settlers.  Had  it  not  accommodated  itself  to  their  notions  of 
equality  and  equity,  and  to  the  economic  needs  of  a  people 
settling  in  a  new  and  uninhabited  country,  it  might  have  been 
altered  and  changed  beyond  recognition.  But  the  local  land- 
system  of  England  was  pre-feudal  in  its  origin,  and  probably 
grew  out  of  a  primitive  system  of  agrarian  equality,  a  fact 
which  the  equal  strips,  the  scattered  holdings  and  the  common 
rights  serve  to  attest.  The  New  England  settlers  were  enter- 
ing an  environment  similar  to  that  out  of  which  the  English 
village  came,  and  they  therefore  found  it  necessary  to  change 
the  English  local  system  but  little  in  order  to  apply .  the 
methods  of  allotment  demanded  by  a  new  country.  The  col- 
onists took  no  retrograde  step ;  all  changes  from  the  exist- 
ing system  at  home  were  in  keeping  with  the  higher  ideas  of 
property  and  equality  which  the 'New  Englanders  brought 
with  them.  The  principles  which  governed  their  action  were 
three:  first,  that  of  preventing  the  engrossing  of  lands  and 
their  accumulation  in  the  hands  of  a  few,  the  dangers  of  which 
in  England  were  familiar  to  the  colonists ; *  secondly,  that 
of  subserving  the  law  of  equity  by  treating  every  man  fairly, 
not  only  in  giving  him  a  share  in  conquered  or  purchased 
lands,  but  also  in  so  allotting  that  share  that  he  might  be 
subject  to  all  the  advantages  and  drawbacks  that  bore  upon 
his  neighbors ;  2  and  thirdly,  that  of  hastening  settlement  and 

1 "  Whereas  much  experience  shows  that  sundry  inconveniences  do 
arise  to  the  burdening,  disturbing  or  depopulating  of  smaller  plantations, 
were  either  sundry  lotts  or  accommodations  are  engrossed  into  one 
hand  or  possessed  or  held  by  unsuitable  or  unfit  persons,"  etc.  Guilford 
Mss.  Book  of  the  More  Fixed  Orders.  "  Where  as  there  hath  been  a 
great  abuse  in  several  towns  and  plantations  in  this  colony  in  buying 
and  purchasing  Home-lotts  and  laying  of  them  together  by  means 
whereof  great  depopulation  may  follow,"  etc.  Laws  of  the  Colony  of 
Connecticut  (ed.  1715),  p.  51. 

2 1  have  discussed  this  question  briefly  in  an  article  entitled  "  Die 
Stadt  in  Neu-England,"  in  the  Zeitschrjft  fur  Social-und  Wirthschafts- 
geschichte,  vol.  ii.  pp.  103-131,  224-240,  especially  p.  232,  note  58.  To 
the  instances  there  quoted  I  will  add  two  others,  as  the  question  is  an 
important  one. 

"  And  whereas  by  the  Law  of  Natural  Equity  and  Right  all  those 
that  joyned  in  making  the  conquest  and  those  that  joyned  in  subdueing 
the  .country  from  a  Wilderness  (as  it  then  was  and  in  a  great  measure 


434  ///.     THE    COLONIAL    PERIOD 

the  improvement  of  land.1  Land  was  therefore  divided2  by 
the  towns  or  by  the  bodies  of  proprietors  into  fields,  called 
"  squadrons  "  in  Worcester,  "  furlongs  "  in  Middletown, 
"  shots  "  in  Milford,  and  "  quarters  "  in  New  Haven,  and 
these  were  subdivided  into  smaller  strips  ranging  from  one 
acre  3  to  forty  or  more  in  size.  Various  methods  were  em- 
ployed for  obtaining  equality,4  and  every  effort  was  made  to 
hasten  cultivation  and  to  increase  industry.  Removal  was 
discouraged  by  liability  to  forfeiture ; 5  alienation  was  limited 
by  laws  common  to  nearly  every  town  in  New  England ; 6  the 

still  is)  to  a  condition  fit  for  tillage  and  Profit  should  also  joyntly  and 
share  in  the  advantages  that  arise  from  this  their  Conquest  and  Indus- 
try and  accordingly  the  first  Planters  did  devide  the  lands  thus  obtained 
among  themselves,"  etc.  "  An  Act  for  the  Settlement  of  Intestate  Es- 
tates," Conn.  State  Archives,  Foreign  Correspondence,  II  146,  Cf.  Tal- 
cott  Papers,  I,  148. 

"  It  is  a  fundamental  agreement  that  all  lands  whether  upland, 
meadow  or  home  lotts  should  be  made  equal,  that  if  it  was  not  equall 
to  other  mens  in  the  quality  of  it  it  should  be  made  up  in  quantity,  or 
if  it  unequall  in  distance  of  place  it  should  be  made  equall  in  quantity 
also.  So  that  where  you  find  any  parcell  to  exceed  in  number  of  acres 
more  than  it  is  charged  with  rate  you  may  know  that  it  is  allowed  for 
satisfaction  to  equall  his  lands  to  other  mens."  Milford  Mss.  Town 
Records,  Dec.  28,  1646.  For  all  the  extracts  from  the  Milford  Town 
Records  I  am  indebted  to  Miss  J.  L.  Brownell. 

1 "  It  was  inhabitants  and  not  land  that  was  wanting."  Talcott 
Papers  I,  p.  145,  Cf.  Conn.  Col.  Rec.  II,  pp.  185,  187.  Palfrey  estimates 
the  value  of  land  in  1713  at  6  farthings  an  acre.  History  of  New  Eng- 
land, IV,  p.  364. 

*  There    was    greater    regularity    and    uniformity    than    in    England. 
One  system  was  new,  the  other  old.     But  by  curving  the  allotted  strips, 
by  running  the  shots  and  fields  a  little  more  irregularly,  by  throwing  in 
a  few  gores  and  headlands,  we  should  have  what  would  be  in  its  main 
features  the  same  system. 

3 "  It  is  agreed  by  vote  that  the  remainder  of  the  Dreadful  Swamp 
.  .  .  shall  be  laid  out  into  acre  lotts."  Milford  Town  Records,  I,  p.  62. 

*  The  "  Purchase  Right "  which  each  proprietor  had  in  the  town  was 
determined  not  only  by  the   amount   of  money  subscribed   to  the  pur- 
chase of  the  lands  but  also  by  the  number  of  heads  in  each  family.     I 
have  discussed  the  "  Purchase  Right "  at  some  length  in  "  Die  Stadt  in 
Neu-England,"  and  have  endeavored  to  show  that  its  scattered  character 
was  due  to  the  desire  to  obtain  equality.     This  principle  permeated  the 
system  as  the  following  will  show:   "Ordered  that  in  this  division  every 
one  shall  have  his  division  in  two  places,  half  in  the  nearest  field  and  the 
other  half  in  the  furthest."    Milford  Town  Records,  I,  p.  10.    "  The  field 
was  divided  into  two  parts  lengthwise  and  the  order  of  holders  in  one 
tier  would  be  reversed  in  the  other  thus  making  the  distribution  more 
equal."    River  Towns  of  Connecticut,  pp.  44-45,  J.  H.  U.  Studies,  VII. 

5  Rules  to  this  effect  are  to  be  found  in  every  book  of  Town  Records. 
Milford  Town  Records,  I,  p.  13.  River  Towns,  p.  50. 

'"Ordered  that  no  man  shall  sell  his  house  but  first  he  must  pro- 
pound his  person  and  chapman  to  the  town  and  within  twenty  days 
after  his  propounding  it  the  town  to  answer  his  desire  to  take  it  off  or 


13.     ANDREWS:   COLONIAL    CONDITIONS   435 

burden  of  taxation  and  the  care  of  the  fences,  highways,  etc., 
was  distributed  as  evenly  as  possible;  and  every  effort  was 
made  to  increase  the  amount  of  land  brought  under  cultiva- 
tion. All  this  was  characteristic  of  New  England  in  general 
and  of  Connecticut  in  particular. .  The  life  in  the  latter 
colony  was  predominantly  agricultural,  the  industrial  and 
commercial  aspects  had  hardly  begun  to  appear,  the  govern- 
ment was  republican  —  and  for  a  hundred  and  fifty  years  of 
all  the  colonial  governments  it  was  the  one  most  independent 
of  the  mother  country  l  —  the  laws  made  were  adapted  to  the 

let  him  take  his  chapman  always  provided  the  Inhabitants  may  buy  and 
sell  within  themselves  notwithstanding  this  order."  Mil  ford  Town 
Records,  I,  p.  11.  I  have  quoted  this  law  from  the  Milford  Records, 
because  it  contains  some  new  points  supplemental  to  the  many  others 
printed  before  and  has  itself  never  been  printed.  A  similar  law  passed 
by  the  Colony  of  Connecticut  came  to  the  notice  of  the  legal  advisor  of 
the  Board  of  Trade  who  commented  on  it  thus:  "This  Act  would  be 
very  extraordinary  in  England  but  whether  it  may  not  be  proper  in 
a  country  where  they  are  encompassed  with  enemies  is  humbly  sub- 
mitted to  your  Lordship's  consideration."  The  limited  range  of  this 
law,  which  grew,  as  did  the  intestate  law,  out  of  the  necessities  of  the 
settlement,  and  the  brief  period  during  which  it  was  enforced,  pre- 
vented it  from  assuming  so  important  a  place  in  the  relations  between 
England  and  the  coldnies. 

1  The  colonies  most  exempt  from  English  interference  and  control 
were  of  course  Maryland,  Pennsylvania,  Connecticut,  Rhode  Island,  and 
Massachusetts.  Massachusetts,  however,  had  a  royal  governor  and  was 
obliged  to  deliver  her  laws  for  the  approval  of  the  Council  within  three 
years  after  they  had  been  passed,  though  if  they  were  not  repealed 
within  that  time  they  could  not  be  repealed  at  all.  Pennsylvania  had 
a  five  years  limit.  But  the  laws  of  Connecticut  and  Rhode  Island  were 
not  repealable  by  the  Crown;  these  colonies  never  lost  their  charters  as 
did  Massachusetts,  never  came  into  direct  dependence  upon  the  Crown 
as  did  Maryland  for  a  short  time,  and  were  almost  outside  the  knowl- 
edge of  the  Privy  Council  and  the  Board  of  Trade.  There  is,  however, 
one  difference  in  the  attitude  of  these  colonies  toward  English  law 
which  is  interesting.  Rhode  Island,  by  referring  herself  to  the  law  of 
England  in  cases  where  she  had  none  of  her  own,  made  some  of  the 
laws  of  England  to  be  her  own  laws.  Connecticut,  on  the  other  hand, 
in  case  of  doubt  referred  to  "  some  plain  and  clear  rule  of  the  Word 
of  God."  In  1665  the  Deputy  Governor  and  the  Assistants  desired  the 
advice  of  the  General  Court  concerning  incest,  whether  the  law  of  the 
colony  "  that  orders  in  defect  of  a  law  we  should  have  recourse  to  the 
Word  of  God  for  our  law "  were  binding  or  not.  The  Court  decided 
that  the  colony  should  act  according  to  the  Word  of  God.  Conn.  Col. 
Rec.,  II,  p.  184.  Robert  Quary  commented  on  this  statement  in  the 
Book  of  Laws  as  follows :  "  The  people  are  of  a  very  turbulent,  factious 
and  uneasy  temper.  I  cannot  give  their  character  better  than  by  telling 
your  Lordships  that  they  have  made  a  body  of  laws  for  their  govern- 
ment which  are  printed ;  the  first  of  which  is  that  no  law  of  England 
shall  be  in  force  in  their  government  till  made  so  by  act  of  their  own. 
Having  told  your  Lordships  this,  I  think  there  is  no  further  room  to 
admire  at. any  extravagancy  acted  in  the  government."  Quary  to  the 


436  ///.     THE    COLONIAL    PERIOD 

conveniences  of  the  inhabitants  rather  than  to  the  common 
and  statute  law  of  England,  and  the  policy  of  the  colony 
at  all  times  was  to  remain  hidden  as  far  as  possible  from  the 
notice  of  the  home  authorities.  It  is  no  wonder,  therefore, 
that  there  should  have  grown  up  under  the  conditions  — 
agrarian  and  economic  —  attendant  on  the  settlement  of  a 
new,  partly  uninhabited,  partly  unconquered  territory,  laws 
based  not  on  legal  theory  but  on  custom,  laws  that  either  were 
not  known  to  English  law  a  or  were  not  in  accord  with  it. 

Of  all  these  laws  none  was  more  important,  more  an  organic 
part  of  the  life  of  the  colony  or  fundamental  to  its  welfare, 
than  that  which  governed  the  disposal  of  intestate  estates.  It 
is  manifest  that  people  influenced  by  the  principles  already 
mentioned  in  their  distribution  of  land  would  apply  the  same 
principles  to  the  distribution  of  the  realty  of  an  intestate. 
They  certainly  would  not  have  undermined  the  colonial  struc- 
ture by  admitting  into  its  construction  methods  foreign  to 
the  general  plan.  Primogeniture,  favorable  to  the  accumula- 
ton  of  estates,  but  unfavorable  to  a  rapid  increase  of  the 
inhabitants,  a  furtherance  of  agriculture,  and  a  cultivation 
of  the  soil,  and  opposed  to  the  natural  law  of  equity,  was  not 
in  accord  with  the  principles  of  the  New  England  settlers. 
The  intestacy  law  was,  therefore,  the  unavoidable  and  logical 
outcome  of  the  principles  which  underlay  the  land-system  of 

Board  of  Trade,  B.  T.  Papers,  Plantations  General,  Entry  Book,  D,  fol. 
201,  Cf.  Mil  ford  Town  Records,  I,  1 ;  Talcott  Papers  I,  143,  II.  Appen- 
dix. "  Instructions  to  Agent."  Gershom  Bulkeley  in  his  "  Will  and 
Doom"  complains  that  "by  this  Law  all  the  Law  of  England  (Common 
or  Statute  or  other)  is  exploded  at  once."  (From  MSS.  copy  of  the 
transcript  sent  over  by  Lord  Cornbury  in  the  possession  of  the  Conn. 
Hist.  Society.  The  transcript  is  in  B.  T.  Papers,  Proprieties,  N.  20.) 
I  know  of  but  two  Connecticut  Acts  directly  taken  from  the  English 
Statute  law  before  1750.  First,  "Act  about  Bastards"  from  21  Car. 
c.  27  and  second,  "  Act  for  Ease  of  those  who  soberly  Dissent "  from  1 
Wm.  and  M.  c.  18  commonly  called  the  Toleration  Act.  Five  others, 
however,  are  probably  based  on  English  Statute  law.  1.  "Act  concern- 
ing the  Dowry  of  Widows."  2.  "Act  concerning  forms  of  Writs."  3. 
"  Act  concerning  Deputies  Salary."  4.  "  Act  for  Regulating  Juries  and 
Wiltnesses."  5.  "Act  relating  to  Sureties  upon  Mean  Process  in  Civil 
Action."  In  1750  the  Colony  printed  all  Acts  passed  by  Parliament 
which  were  considered  to  be  binding  on  the  colony.  There  are  ten  Acts 
in  all,  and  none  of  these  had  been  reenacted  by  the  colony.  Conn.  Col. 
Rec.  viii.  p.  352. 

1  Two  laws  certainly  were  not  known  to  English  law.  1.  "  Act  for 
the  punishment  of  Lying."  2.  "An  Act  for  the  preventing  of  Oppres- 
sion." 


13.     ANDREWS:   COLONIAL   CONDITIONS   437 

New  England.  This  becomes  the  more  apparent  when  we  real- 
ize that  for  more  than  sixty  years  it  existed  as  a  custom  in  no 
way  binding  on  the  people,  and  that  it  did  not  become  a  law 
in  Massachusetts  until  1692,  or  in  Connecticut  until  1699. 1 
By  the  English  common  law  the  eldest  son  was  the  sole  heir 
and  was  entitled  to  the  whole  estate  exclusive  of  all  other 
children ;  whereas  the  colonial  law 2  directed  that  the  real 
estate  of  an  intestate  be  distributed  in  single  shares  to  all  the 
children  except  the  eldest  son,  to  whom,  following  the  ruling 
of  the  Mosaic  Code,  the  law  assigned  a  double  portion.3  The 
Connecticut  law  was  not  the  arbitrary  act  of  the  assembly 
of  the  colony ;  it  was  the  sanctioning  of  a  custom  which  had 
grown  out  of  the  consent  of  heirs  to  an  intestacy,  and  which 
had  been  proved  by  experience  to  be  the  best  adapted  to  the 
needs  of  the  colony.4  Governor  Talcott  gives  in  brief  the 

1  Conn.  Col.  Rec.  IV,  p.  307.  "  I  have  observed,"  writes  Lieut.  Gov- 
ernor Law,  "  the  law  to  be  of  no  ancienter  date  than  1699  and  our  old 
law  book,  dated  in  1672,  prescribes  no  rule  excepting  the  righteousness 
and  equity  lodged  in  the  breast  of  the  County  Court."  Law  to  Talcott, 
Talcott  Papers,  I,  p.  119.  Also  I,  pp.  122-123,  144,  392-394.  II,  pp.  225, 
244-245.  The  October  Orders  of  1639  contain  the  earliest  form  of  the 
law,  as  follows:  "  But  when  any  prson  dyeth  intestate  the  sayd  order- 
ers  of  the  affayres  of  the  Towns  shall  cause  an  Inventory  to  be  taken 
and  then  the  Public  Court  may  graunt  the  administracon  of  the  goodes 
and  chattels  to  the  next  of  kin,  joyntly  or  severally,  and  divide  the 
estate  to  wiefe  (if  any  be)  children  or  kindred  as  in  equity  they  shall 
meet."  Conn.  Col.  Rec.,  I,  p.  38.  This  was  repeated  verbatim  in  the 
Code  of  1650.  In  the  Revision  of  1673  to  which  Law  refers  there  are 
slight  changes  in  phraseology  but  none  in  meaning. 

*"The  said  Court  of  Probate  shall  and  hereby  are  fully  empowered 
to  order  and  make  a  just  distribution  of  the  surplusage  or  remaining 
goods  and  estate  of  any  such  intestate,  as  well  real  as  personal  in 
manner  following:  That  is  to  say  one-third  part  of  the  personal  estate 
to  the  Wife  of  the  Intestate  (if  any  be)  forever,  besides  her  dower  or 
thirds  in  the  housing  and  lands  during  life,  where  such  wife  shall  not 
be  otherwise  endowed  before  marriage;  and  all  the  residue  of  the  real 
and  personal  estate  by  equal  portions  to  and  among  the  children  and 
such  as  shall  legally  represent  them  (if  any  of  them  be  dead)  other  than 
such  children  who  shall  have  any  estate  by  settlement  of  the  Intestate 
in  his  lifetime,  equal  to  the  other's  share;  children  advanced  by  settle- 
ment or  portions  not  equal  to  the  other  shares;  to  have  so  much  of  the 
surplusage  as  shall  make  the  estate  of  all  to  be  equal;  except  the  eldest 
then  surviving  (where  there  is  no  issue  of  the  first  born  or  any  other 
eldest  son)  who  shall  have  two  shares  or  a  double  portion  of  the  whole, 
and  where  there  are  no  sons  the  daughters  shall  inherit  as  co-partners." 

8Deut.  xxi.  17. 

4  Another  clause  of  the  Act  makes  this  clear.  "  Unless  where  all  the 
parties  interested  in  any  estate  being  equally  capable  to  act,  shall 
mutually  agree  of  a  division  among  themselves  and  present  the  same 


438  ///.     THE    COLONIAL    PERIOD 

reasons  for  the  intestate  law  in  his  instructions  to  Belcher :  — 
"  And  much  of  our  lands  remain  unsubdued,  and  must  con- 
tinue so  without  the  assistance  of  the  younger  sons,  which  in 
reason  can't  be  expected  if  they  have  no  part  of  the  inherit- 
ance; for  in  this  poor  country,  if  the  landlord  lives,  the 
tenant  starves :  few  estates  here  will  let  for  little  more  than 
for  maintaining  fences  and  paying  taxes.  By  this  custom 
of  dividing  inheritances,  all  were  supply'd  with  land  to  work 
upon,  the  land  as  well  occupy'd  as  the  number  of  hands  would 
admit  of,  the  people  universally  imploy'd  in  husbandry; 
thereby  considerable  quantities  of  provisions  are  rais'd,  and 
from  our  stores  the  trading  part  of  the  Massachusetts  and 
Rhode  Island  are  supply'd,  the  fishermen  are  subsisted,  and 
the  most  of  the  sugars  in  the  West  Indies  are  put  up  in  casks 
made  of  our  staves.  By  means  of  this  custom  his  Ma j 'ties 
subjects  are  here  increased,  the  younger  brethren  do  not  de- 
part from  us,  but  others  are  rather  encouraged  to  settle 
among  us,  and  it's  manifest  that  New  England  does  populate 
faster  than  the  Colonies  where  the  land  descends  according  to 
the  rules  of  the  common  law.  And  such  measures  as  will 
furnish  with  the  best  infantry  does  most  prepare  for  the  de- 
fence of  a  people  settled  in  their  enemies  country.  If  this 
custom  be,  so  ancient  and  so  useful,  non  est  dbolenda,  sed 
privare  debet  communem  legem."1 

Such  were  the  conditions  out  of  which  the  intestate  law 
grew,  and  such  were  the  reasons  for  its  embodiment,  after 
sixty  years  of  customary  use,  into  law.  Economists  can  find 
evidence  here  for  the  study  of  land-appropriation  in  a  new 
country ;  students  of  the  history  of  law  will  be  interested  in 
the  growth  of  customary  law ;  but  for  us  the  interest  is  of 
a  different  character.  The  law  was  clearly  contrary  to  the 
corresponding  law  in  England.  Certain  disaffected  ones  in 

in  writing  under  their  hands  and  seals,  in  which  case  such  agreement 
shall  be  accepted  and  allowed  for  a  settlement  of  such  estate  and  be 
accounted  valid  in  law."  Winthrop  said  the  same  in  his  Memorial  to 
the  committee  of  the  Privy  Council.  "The  Memorialist  heps  leave 
further  to  observe  to  your  Lordships  that  the  pretended  custom  of  dis- 
tributing intestate  real  estates  amongst  all  the  children  was  no  other- 
wise introduced  than  by  the  consent  of  parties  when  lands  in  those  parts 
were  of  little  or  no  value."  Talcott  Papers,  I,  p.  394. 
1  Talcott  Papers,  I,  pp.  145-146,  Cf.  188-189. 


13.     ANDREWS:   COLONIAL    CONDITIONS   439 

the  colony,  opposed  to  the  government,1  and  overzealous  in 
finding  flaws  in  colonial  law  and  administration,  and  ever 
ready  to  exhibit  such  discoveries  to  the  authorities  in  Eng- 
land, began  to  question  the  validity  of  the  custom  even  before 
it  became  a  law.  This  was  done  by  Governor  Talcott  himself 
in  1691,2  and  by  Major  Palmes  in  1698,:{  while  in  Massa- 
chusetts Dudley  complained  of  the  law  in  1693.4  The  ques- 
tion was  not  destined,  however,  to  become  prominent  for 
nearly  thirty  years,  but  it  early  became  of  importance  as 
part  of  a  larger  question,  the  forfeiture  of  the  charters  and 
the  proposal  to  unite  the  charter  and  proprietary  colonies  to 
the  Crown.  The  agitation  to  produce  this  latter  result  seems 
to  have  grown  out  of  the  desire  to  unite  the  colonies  of  North- 
ern America  under  one  military  head,5  and  was  increased  by 
the  controversy  over  the  right  of  appeal  to  the  King  in  Coun- 
cil and  the  dissatisfaction  arising  therefrom.  In  Massachu- 
setts a  law  had  been  passed  regarding  appeals,  but  it  was 

1  Major  Palmes  refused  to  pay  his  dues  because  he  considered  the 
government  restored  after  the  revolution  of  1688  "  no  government." 
Col.  Rec.  IV,  pp.  325-326. 

3  It  is  not  unlikely  that  there  were  other  early  unrecorded  protests 
against  the  custom,  though  probably  not  many,  if  there  were  any,  before 
1688.  Gershom  Bulkeley  speaks  as  follows  in  his  "  Will  and  Doom," 
"if  a  Man  dye  Intestate  they  will  and  do  ....  distribute  his  lands 
among  sons  and  daughters,  &c.,  as  if  they  were  pots  and  kettles.  .  .  . 
So  that  their  law  will  not  allow  an  heir  or  Inheritance  at  the  Common 
Law  which  is  another  repugnancy  to  the  Law  of  England."  It  is  an 
interesting  fact  that  Governor  Talcott  himself,  who  afterwards  so 
loyally  defended  the  intestate  law,  should  have  petitioned  the  legisla- 
ture in  1691  when  but  twenty-two  years  old  against  the  equal  division 
of  his  father's  estate,  and  should  have  claimed  possession  of  the  real 
estate  by  right  of  primogeniture.  Talcott  Papers,  I,  p.  xix. 

"Palfrey,  IV,  p.  491. 

*  "  For  want  of  which  [i.  e.  the  same  English  laws]  there  are  different 
laws  and  forms  of  administration  very  disagreeable  not  (only)  in  lesser 
matters  but  even  in  the  descent  of  estates  at  the  common  law."  Dud- 
ley's "  Paper  on  the  Governments  of  New  England,  New  York,  etc."  B. 
T.  Papers,  New  England,  vol.  7.  F.  13. 

5  The  period  from  1695  to  1715  was  a  time  of  trial  for  the  colonies. 
They  were  attacked  by  the  French,  were  in  constant  trouble  from  the 
Indians,  were  disturbed  by  the  many  irritating  reports  of  royal  officers 
and  merchants  in  the  colonies,  and  were  not  sufficiently  established  to 
resist  encroachment  and  to  maintain  a  position  of  self-reliance.  As  a 
result,  they  were  often  in  distress,  and  it  is  little  wonder  that  many  in 
New  England  and  New  York  petitioned  for  a  stronger  central  govern- 
ment. In  1697  Harrison,  Ashurst,  Sewall  of  Salem  and  others  peti- 
tioned for  a  union  of  colonies,  the  Board  of  Trade  thought  that  secur- 
ity could  be  obtained  in  no  other  way,  the  Lords  Justices  favored  the 
scheme,  and,  in  consequence,  although  the  agents  of  New  Hampshire, 


440  ///.     THE   COLONIAL    PERIOD 

annulled,  altered,  re-enacted,  and  again  annulled.1  New- 
Hampshire  refused  an  appeal  in  the  Allen  case  in  1701 ; 2 
Connecticut  an  appeal  in  the  Hallam  case  in  1699 ; a  but 
in  each  of  these  cases  the  King  in  Council  granted  the 
petition  for  an  appeal,  resting  the  decision  on  the  plea  that 
it  was  the  inherent  right  of  his  Majesty  to  receive  and  deter- 
mine appeals  from  all  his  Majesty's  colonies  in  America.4 
Connecticut,  on  the  other  hand,  based  its  determination  to- 
resist  such  appeal  upon  its  willingness  that  the  Privy  Coun- 
cil should  be  the  interpreter  of  the  colony's  law.5 

It  was  not  difficult  to  find  additional  charges.  Complaints 
were  made  that  the  colony  broke  the  Navigation  Acts,  har- 
bored pirates,  neglected  to  take  the  oaths  required  by  law, 
encouraged  manufactures,  were  negligent  in  military  duties 
and  in  the  erection  of  fortifications,  encroached  on  the  juris- 
diction of  the  Admiralty,  and  opposed  the  authority  of  its 
officers,  protected  escaped  soldiers,  seamen  and  servants,6  and 
failed  to  comply  with  certain  requirements  of  the  home  gov- 
ernment —  as  in  the  case  of  the  proclamation  regarding  coin, 
the  instructions  to  naval  officers,  the  command  to  aid  New 
York  with  quotas  of  men  against  the  French  and  Indians  — 
etc.  Through  the  influence  of  Dudley  and  the  pertinacity 
of  Edward  Randolph,  for  it  was  he  who  personally  led  the 
campaign  in  the  lobby  of  Parliament,7  a  bill  was  brought 

New  York  and  Connecticut  opposed  the  plan,  New  Hampshire,  Massa- 
chusetts and  New  York  were  joined  in  1697  under  one  governor,  and 
with  Connecticut  and  Rhode  Island  were  placed  under  Bellomont  as 
their  military  head.  The  year  before  an  admiralty  system  had  been 
erected  for  the  colonies  by  commission  under  the  seal  of  the  Admiralty 
of  England.  In  the  North  courts  were  erected  at  Boston  and  New  York. 

1  Palfrey,  IV,  pp.  172-174,  200.         *  Ibid,  .pp.  218-219. 

'  Caulkins,  History  of  New  London,  pp.  222-227. 

4  Palfrey,  IV,  p.  224. 

'  In  a  deposition  taken  before  Governor  Cranston  of  Rhode  Island 
two  men,  Fitch  and  Mason,  said  that  they  had  heard  Governor  Fitz  John 
Winthrop  say,  "  I  '(or  we)  will  grant  no  appeals  for  England  but  I  (or 
we)  will  dispute  it  with  the  King,  for  if  we  should  allow  appeals  I  will 
not  give  a  farthing  for  our  charter."  B.  T.  Papers,  Proprieties,  O.  39. 

8  Letter  from  the  Board  of  Trade  to  Governor  Blakeston  of.  Mary- 
land. B.  T.  Papers,  Maryland,  Entry  Book,  B.  ff.  88-90.  Winthrop  in 
his  complaints  probably  did  little  more,  if  we  may  judge  from  what  we 
are  told  of  them  in  Talcott's  reply,  than  voice  the  complaints  current 
among  those  opposed  to  the  colonial  administration.  Documents  relat- 
ing to  the  Colonial  History  of  New  York,  IV,  p.  1079. 

7  Randolph's  bill  of  expenses  incurred  amounted  to  £96.  11.6.  B.  T. 
Papers,  Proprieties,  G.  20. 


13.     ANDREWS:   COLONIAL   CONDITIONS   441 

forward  in  1700-1701  for  reuniting  to  the  Crown  the  govern- 
ments of  several  colonies  and  plantations  of  America  — 
Massachusetts  Bay,  New  Hampshire,  Rhode  Island  and 
Providence  Plantations,  Connecticut,  East  and  West  New 
Jersey,  Pennsylvania,  Maryland,  Carolina  and  the  Bahamas 
and  St.  Lucia  Islands  —  on  the  ground  that  "  the  severing 
of  such  power  and  authority  from  the  Crown  and  placing  the 
same  in  the  hands  of  subjects  hath  by  experience  been  found 
prejudicial  and  repugnant  to  the  trade  of  this  Kingdom  and 
to  the  welfare  of  his  Majesty's  other  plantations."  *  The 
bill,  however,  by  reason  of  "  the  shortness  of  time  and  the 
multiplicity  of  other  business,"2  failed  to  pass,  but  the 
Board  thinking  it  very  likely  that  it  would  come  up  again  for 
consideration,  desired  from  the  colonies  all  possible  informa- 
tion that  would  aid  in  the  matter.  From  1701  to  1706 
charges  continued  to  be  sent  in.  Quary,  Bass,  Congreve, 
Larkin,  Dudley,  and  Cornbury  all  drafted  lists  of  com- 
plaints. The  Board  in  a  representation  to  the  Council  in 
1703  expressed  its  opinion  "  that  the  great  mischief  can  only 
be  remedied  by  reducing  these  colonies  to  an  immediate  de- 
pendence on  the  Crown."  3  For  Connecticut  it  was  a  time 
of  anxiety.  The  influence  of  the  Hallam  case,  of  the  contro- 
versy over  the  Narraganset  country  and  the  boundary  line 
with  New  York,  of  the  case  of  the  Mohegan  Indians, 4  of  the 

1  The  text  of  the  Act  is  to  be  found  in  B.  T.  Papers,  Proprieties, 
Entry  Book,  C.  ff.  426-430. 

1  Board  of  Trade  to  Governor  Blakeston:  B.  T.  Papers,  Maryland, 
Entry  Book,  B.  ff.  86,  83. 

8  B.  T.  Papers,  Plantations  General,  Entry  Book,  C.  f.  240.  Every 
effort  was  made  to  Discover  charges  particularly  against  Connecticut 
and  Pennsylvania.  In  1703  Penn  wrote  to  the  Crown,  "  I  observe  your 
bent  is  extremely  strong  to  bring  all  proprietary  governments  under 
the  disposition  of  the  Crown."  B.  T.  Papers,  Proprieties,  M.  19. 

4  It  is  interesting  to  note  that  the  quarrels  in  the  colony  which 
brought  it  to  the  attention  of  the  Board  were  in  'large  part  agrarian. 
This  was  but  natural  in  a  community  where  husbandry  was  dominant. 
Talcott  said  as  late  as  1728  "many  of  the  actions  here  (in  Connecticut) 
are  conversant  about  nothing  else"  (than  the  titles  of  land).  Talcott 
Papers,  I,  157.  The  Hallam  appeal  rested  on  the  denial  of  a  devise  of 
land  to  "  the  ministry  "  of  the  colony,  on  the  ground  that  it  was  either 
in  violation  of  the  Statute  of  Mortmain,  or,  if  it  could  not  be  so 
construed,  it  was  a  devise  to  "  the  ministry  "  recognized  by  the  laws  of 
England,  that  is,  the  ministry  of  the  Episcopal  Church.  As  all  towns 
in  Connecticut  made  grants  to  "  the  ministry "  or  to  "  the  church,"  a 
decision  in  Hallam's  favor  would  have  made  havoc  with  ecclesiastical 
land  titles  in  the  towns.  Caulkins,  History  of  New  London,  pp.  222-227. 


442  ///.     THE    COLONIAL   PERIOD 

petition  of  the  English  Quakers  against  a  Connecticut  law, 
was  to  keep  certain  aspects  of  Connecticut's  management 
steadily  before  the  Board  of  Trade  and  to  lead  to  what  were 
often  serious  misrepresentations  to  the  home  authorities.  In 
consequence  Connecticut  got  a  bad  name.  In  1704  the  colony 
narrowly  escaped  having  a  governor  put  over  it 1  through 
the  authority  of  the  King  in  Council.  But  that  body  evi- 
dently preferred  that  Parliament  should  take  the  matter  in 
hand,  and  in  1706  a  bill  similar  to  that  of  1701  was  intro- 
duced. It  passed  the  House  of  Commons  but  failed  of  pas- 
sage in  the  House  of  Lords.  2 

The  long  list  of  charges  against  the  proprietary  and  char- 
ter governments  already  on  the  books  of  the  Board  was  con- 
tinually supplemented  by  additional  charges  from  Congreve,3 


1  The  Board  of  Trade  sent  a  representation  based  on  the  charges 
of  Dudley  and  Cornb.ury  to  the  Privy  Council.  The  Council  sent  it  to 
Northey  and  Harcourt,  the  Crown  lawyers.  They  replied  advising  that 
a  governor  be  placed  over  both  Rhode  Island  and  Connecticut.  This 
opinion  was  reported  to  the  Board  and  was  communicated  to  the  agents 
of  the  colonies.  A  hearing  was  appointed  at  which  they  were  to  state 
why,  in  point  of  law,  the  Crown  should  not  appoint  governors  over 
these  colonies  during  the  war.  The  hearing  appointed  ~tor  Nov.  30, 
1704,  was  put  off  from  week  to  week  until  Feb.  12,  1705.  In  the  mean- 
time Lord  Cornbury  sent  over  Gershom  Bulkeley's  "  Will  and  Doom " 
to  strengthen  the  case  against  Connecticut.  The  work  was  received 
Jan.  16,  1705.  It  is  probable  that  at  the  hearing  the  agents  were  able 
to  show  the '  inexpediency,  if  not  illegality  of  a  military  governor,  for 
on  the  day  of  the  hearing  the  Council,  evidently  convinced  that  the 
matter  could  be  best  attended  to  by  Parliament,  directed  the  Board 
to  draw  up  a  list  of  charges,  which  was  done,  the  chief  source  being 
the  letters  of  Cornbury  and  Dudley.  The  order  in  Council  also  in- 
structed the  Board  to  transmit  the  list  of  charges  to  the  Governor  of 
New  York  and  New  England.  This  was  done  April  18,  1705,  and 
Cornbury  was  ordered  to  send  copies  to  Connecticut  and  Rhode  Island, 
where  public  depositions  were  to  be  made  as  to  the  truth  or  falsity 
of  the  charges.  (Documents  relating  to  the  Colonial  History  of  r\>u> 
York,  IV,  p.  1141.)  Upon  the  evidence  thus  received  the  Board  based 
its  representation  of-  Dec.,  1705,  in  consequence  of  which  an  Order  in 
Council  was  issued  directing  the  Board  to  lay  before  her  Majesty  the 
misfeances  of  the  charter  governments.  (B.  T.  Journal,  18,  f.  153.) 
This  report  was  sent  to  Mr.  Secretary  Hedges.  He  in  answer  sent 
back  a 'draught  of  a  bill  relating  to  the  uniting  of  the  colonies  to  the 
Crown.  After  some  alteration,  Feb.,  1706  ("f.  219),  this  bill  was  intro- 
duced into  Parliament.  B.  T.  Papers,  Proprieties,  M.  47;  Journal, 
18,  ff.  177-178,  252,  281;  20,  ff.  9,  11. 

1  Palfrey,   IV,  368-369.     See  previous   note. 

8  Charles  Congreve  to  the  Board  af  Trade,  Dec.  4,  1704.  This  letter 
containing  a  list  of  complaints  against  Connecticut  was  written  at  the 
order  of  the  Board.  B.  T.  Papers,  Proprieties,  M.  49. 


18.     ANDREWS:   COLONIAL   CONDITIONS   443 

Dudley,  Quary,  Gauden  and  others.1  The  failure  of  the  bill 
of  1706  was  a  severe  blow  to  its  supporters,  and  the  colony 
for  several  years  experienced  a  relief  from  its  anxiety.  In 
1715  the  matter  came  up  again  because  of  the  complaints 
regarding  banks,  naval  stores,  the  trouble  with  Carolina,  etc., 
and  the  House  of  Commons  appointed  a  committee  com- 
posed of  members  of  the  Board  of  Trade  "  to  inspect  into  the 
miscarriage  and  to  prepare  a  bill  to  resume  the  grants  of  the 
proprietary  governments."  2  Again  a  list  of  charges  was 
prepared,3  but,  whether  another  failure  was  feared4  or  a 
juster  policy  decided  upon,  a  different  plan  was  tried  for 
Connecticut.  The  committee  of  the  Privy  Council  directed 
the  Board  of  Trade  to  inquire  of  the  colony  —  through  Jer. 
Dummer,  the  agent  in  London  —  whether  it  would  be  will- 
ing to  surrender  its  charter  peaceably.  Connecticut's  an- 

1  Quary  to  Board  of  Trade,  Jan.  10,  1708-9.  B.  T.  Papers,  Planta- 
tions General,  Entry  Book,  D.  ff.  200,  205.  The  -following  extract  will 
show  the  nature  of  Quary's  misrepresentations.  The  important  fact  to 
be  noted  is  that  the  Board  had  faith  in  Quary.  .He  was  in  high  favor 
with  the  members  and  they  listened  with  gravity  to  his  suggestions  and 
to  the  information  which  he  gave.  B.  T.  Journal,  vol.  15,  minutes  for 
June  26,  and  succeeding  dates,  1703,  "  I  attended  the  Governor  Colo- 
nel Winthrope,  who  received  me  very  kindly  and  desired  me  not  to 
look  too  narrowly  into  the  mistakes  of  that  government.  I  quickly 
found  that  there  was  good  reason  for  that  caution  for  on  examining 
the  custom-house  I  found  nothing  but  confusion  and  roguery.  I  was 
apprised  of  many  dishonest  practices  acted  in  that  place  before  I  went 
but  did  not  expect  to  have  found  matters  so  very  bad.  The  person 
that  acts  as  collector  was  one  Mr.  Withred,  a  pillar  of  their  church, 
but  a  great  rogue,  for  there  is  no  villainy  that  a  man  in  his  post  could 
do  but  was  constantly  practiced  by  him.  ...  It  would  tire  your  Lord- 
ship to  give  you  a  history  of  the  illegal  trade  carried  on  and  encour- 
aged in  this  government  from  Ciiracoa,  Surinam  and  other  places.  .  .  . 
This  is  a  very  populous  country,  able  to  raise  10,000  effective  men  and 
yet  would  never  assist  their  neighbors  in  defending  their  frontiers  from 
the  public  enemy,  who  hath  destroyed  whole  towns  and  carried  away 
the  inhabitants  for  want  of  a  regulated  government  and  militia.  .  .  . 
I  have  no  hope  of  preventing  illegal  trade  in  that  government  whilst 
it  is  in  the  hands  of  those  people."  B.  T.  Papers,  Plantations  General, 
Entry  Book,  D.  ff.  200-205. 

"  Memorial  from  Mr.  Stephen  Gauden,  relating  to  the  misfeances  of 
Carolina  and  other  Proprietary  Governments,  whereby  they  Forfeit 
their  Charter."  July  25,  1716.  B.  T.,  Proprieties,  Q.  81.  " 

*  B.  T.  Journal,  "25,   f.  216,  Aug.  11,  1715. 

*  B.  T.  Papers,  Proprieties,  Entry  Book,  F.  ff.  464-465. 

4  This  may  be  inferred  from  Gauden's  Memorial :  "  The  committee 
appointed  by  the  Parliament  .  .  .  seemed  somewhat  at  a  loss  how  to  fix 
proper  causes  and  reasons  for  the  doing"  [of  that  for  which  they  were 
appointed!. 


444  ///.     THE    COLONIAL   PERIOD 

swer  is  a  masterpiece  of  firmness  and  politeness  and,  although 
in  the  name  of  the  Governor  and  Company,  was  undoubtedly 
written  by  Saltonstall. l  He  commends  the  justice  and  honor 
of  the  ministry  in  thus  referring  the  question  to  the  corpora- 
tion, a  method  wise  and  just,  possessing  not  the  least  appear- 
ance of  force  and  terror.  He  contrasts  it  with  previous 
methods  unreconcilable  with  common  rights,  law  and  custom, 
of  which  the  colonies  had  had  full  experience.  This  spirit 
of  fairness  he  attributes  to  the  existing  King  and  Ministry, 
who,  though  unlimited  and  subject  to  none,  yet  observed  the 
limits  of  wisdom  and  justice,  and  were  tender  of  what  others 
should  enjoy  as  well  as  of  their  own  prerogative;  who  did 
not  make  use  of  their  power  to  terrify  the  colony  out  of  its 
rights  and  property,  but  gave  it  leave  to  speak  for  itself. 
After  these  quieting  words,  the  Governor  and  Company 
regret  that  they  cannot  choose  that  resignation  of  their 
rights  which  the  King  and  Ministry  think  might  be  best  for 
them,  and  conclude  this  portion  of  the  letter  with  the  follow- 
ing instructions  to  the  agent :  "  You  are  therefore  hereby 
directed  in  plainest  terms  to  acquaint  their  Lordship  that 
we  can't  think  it  our  interest  to  resign  our  charter.  But  on 
the  contrary,  as  we  are  assured,  that  we  have  never  by  any 
act  of  disobedience  to  the  Crown  made  any  forfeiture  of  the 
privileges  we  hold  by  it,  So  we  shall  endeavor  to  make  it 
manifest  and  defend  our  right  whenever  it  shall  be  called  in 
question." 

The  limits  of  this  paper  will  not  allow  a  further  discussion 
of  the  attitude  of  the  home  government  toward  the  Colony. 
It  is,  however,  fundamentally  important  that  we  should  ap- 
preciate the  relations  which  had  previously  existed,  and  the 
one-sided  character  of  the  information  which  the  Board  of 
Trade,  the  Privy  Council  and  even  Parliament  itself  received. 
The  mere  titles  of  the  papers  containing  charges  against  the 
proprietary  and  charter  governments  cover  twenty-one 
pages  of  an  entry  book.  Regarding  Connecticut  there  is  al- 
most nothing  to  relieve  the  unfavorable  impression  received 

1  "  Letter  from  the  Governor  and  Company  of  Connecticut  relating 
to  the  surrender  of  their  charter  to  the  Crown  by  G.  Saltonstall  to  Mr. 
Jer:  Dummer,  their  agent,  dated  Oct.  28th,  1723,  from  N.  Haven." 
B.  T.  Papers,  Proprieties,  R.  49. 


13.     ANDREWS:   COLONIAL    CONDITIONS   445 

by  the  Board,  except  a  letter  now  and  then  from  the  Gov- 
ernor, and  the  answers  to  the  queries  that  were  occasionally 
sent  to  the  colony.  The  references  to  Connecticut  in  the 
Journal  are  rare,  and  generally  relate  to  some  complaints 
against  her.  It  is  difficult  to  determine  how  far  the  Board 
believed  the  statements  sent  it,  but  its  representations  do  not 
show  any  inclination  to  lighten  the  impression  which  the 
letters  from  the  colonies  give. 

This  was  the  position  that  Connecticut  occupied  in  the 
sight  of  the  home  authorities  when  John  Winthrop,  a  grand- 
son of  one  Connecticut  Governor  and  nephew  of  another, 
denying  the  validity  of  the  intestate  law,  claimed  all  the 
real  estate  of  his  father  who  had  died  in  1717,  and,  ignoring 
the  right  which  he  had  of  appeal  from  the  Court  of  Probate 
to  the  Court  of  Assistants,  expressed  his  determination  to  ap- 
peal to  the  King  in  Council.  This  determination  was  carried 
out,  and  as  the  result  of  Winthrop's  efforts  the  intestacy  law 
was  annulled  by  an  Order  in  Council  Feb.  15,  1728,  as  con- 
trary to  the  laws  of  England  and  not  warranted  by  the 
charter.1  The  case  was  a  private  one  and  the  colony  was  not 
heard  in  the  matter.  There  is  no  doubt  that  the  defendant, 
Lechmere,  was  inadequately  defended  by  some  one  little 
versed  in  the  colony's  affairs,  that  his  evidence  was  far  from 
complete,  his  purse  far  from  full,  and  that  he  was  especially 
in  want  of  "  a  good  sword  formed  of  the  royal  oar."  2  Win- 
throp, on  the  other  hand,  was  ably  defended  by  Attorney 
General  Yorke  and  Solicitor  General  Talbot.  The  Commit- 
tee of  the  Council  did  not  call  in  the  assistance  of  the  Board 
of  Trade,  and  there  are  no  documents  bearing  on  this  phase 
of  the  case  among  their  papers.  Winthrop  did  not  rest  his 

1  The  decree  is  printed  in  full  in  Conn.  Col.  Rec.  VII,  Appendix. 
Mass.  Hist.  Soc.  Collections,  6th  ser.  vol.  V,  pp.  496-506.  It  will  be 
impossible  to  give  here  even  an  outline  of  the  facts  of  the  case.  See 
Talcott  Papers,  I,  pp.  94  note,  187,  241.  Mass.  Hist.  Soc.  Proc.,  March, 
1893,  pp.  125-127.  Conn.  Col.  Rec.,  VII,  p.  572  if.  That  there  was 
considerable  justice  in  Winthrop's  position  becomes  evident  when  we 
know  of  the  contents  of  Wait  Winthrop's  will  and  of  Lechmere's  im- 
pecunious condition.  Mass.  Hist.  Soc.  Collections,  6th  ser.  vol.  V,  pp. 
367  (note) -370;  also  Winthrop's  letter  to  Cotton  Mather,  pp.  425-428. 
The  most  detailed  account  of  the  case  is  to  be  found  in  the  same  vol- 
ume, pp.  440-467. 

*  Talcott  Papers,  ft,  pp.  77-78,  136.  Conn.  Col.  Rec.,  VII,  p.  191 
note.  State  Archives,  Miscellanies,  II,  doc.  313. 


446  ///.     THE    COLONIAL   PERIOD 

case  solely  upon  the  question  of  the  validity  or  invalidity  of 
the  law,  but  he  repeated  most  of  the  charges,  which  were 
already  familiar  to  the  Council  and  its  committee,  and 
thereby,  as  Mr.  Parris  said,  "  very  much  assisted  his  case."  1 
The  legal  aspects  of  the  trial  have  attracted  but  a  small 
amount  of  attention  from  historians,  for  the  incidents  were 
neither  dramatic  nor  politically  exciting,  yet  there  were  in- 
volved in  the  case  principles  of  great  moment  to  the  colonists, 
questions,  the  solution  of  which  was  to  affect  the  future  re- 
lations between  them  and  the  home  government. 

The  effect  of  the  vacating  of  the  law  shows  at  once  that 
the  Privy  Council  acted  without  a  reasonable  understanding 
of  the  matter  at  issue.  It  based  its  opinion  upon  the  literal 
interpretation  of  the  charter  from  its  own  point  of  view,  and 
was  entirely  without  an  honest  appreciation  of  the  equity 
in  the  case.2  Two  conditions,  defensible  in  themselves,  had 
come  into  conflict.  For  the  moment  the  customary  law  of  one 
country,  arising  from  one  set  of  historical  circumstances, 
was  to  be  enforced  in  another  country,  the  agrarian  and 
economic  life  of  which  had  brought  into  existence  a  custom- 
ary law  very  different.  The  common  law  of  England  and 
the  common  law  of  the  colony  did  not  agree.  The  latter  did 
not  represent  the  defiant  will  of  a  body  of  law-makers,  it 
represented  a  principle  of  land-distribution  which  the  ex- 
perience of  the  colony  had  shown  to  be  best  adapted  to  its 
own  prosperity  and  continued  existence.  This  becomes 
clearer  when  we  note  what  would  have  been  the  economic 
effects  of  voiding  the  intestate  law. 

The  first  result  would  have  been  a  general  unsettling  of 
titles  to  lands  left  intestate  or  alienated  after  intestate  settle- 
ment. This  was  due  to  the  fact  that  a  large  majority  of  the 
people  consisted  of  farmers  and  agriculturists,  possessing 

1  Talcott  Papers,  II,  p.  77. 

*  Govr.  Talcott  recognized  the  unfairness  of  the  decision  from  the 
standpoint  of  equity,  when  he  said  in  a  letter  to  the  Board  of  Trade 
Nov.  4,  1731,  "Your  Lordships  will  be  best  informed  of  the  reason, 
necessity  and  usefulness  of  our  laws  by  considering  the  state  and  cir- 
cumstances of  our  country  so  many  ways  differing  from  that  of  Eng- 
land." B.  T.  Papers,  Proprieties,  S.  36."  Talcott  Papers,  I,  p.  250;  II, 
p.  225.  It  is  worthy  of  notice  that  Winthrop's  own  counsel  declared 
against  the  judgment  of  the  Council  afterward*  Talcott  Papert,  II, 
p.  72. 


13.     ANDREWS:   COLONIAL   CONDITIONS   447 

little  personal  estate.1  Many  of  these  settlements  reached 
back  to  the  beginnings  of  the  colony,  and  the  invalidating  of 
titles  would  have  affected  large  numbers  of  descendants  who 
would  thus  have  been  liable  to  ejection  at  the  instance  of  the 
eldest  heir.2  Such  ejectment  concerned  the  younger  sons 
and  the  female  heirs,  for  whom  under  such  conditions  there 
would  be  no  place  in  the  colony. 3  Even  if  the  titles  to 
estates  already  settled  in  the  Court  of  Probate  should  be 
allowed  to  stand,  yet  there  were  many  estates  of  twenty  or 
thirty  years  standing  that  had  never  been  settled,  and  more 
of  a  later  date,  so  that  the  suffering  would  only  be  limited, 
not  ended.  Furthermore,  litigation  would  have  at  once 
ensued,  which  would  have  involved  the  colony  in  an  eco- 
nomic loss  greater  than  that  entailed  in  a  resistance  to  the 
decree.  The  agrarian  system  of  the  towns  would  have  given 
to  this  litigation  a  curious  complexity.  Quarrels  were  cer- 
tain to  arise  within  the  towns  themselves  regarding  the 
ownership  of  the  common  and  undivided  lands.4  Would  the 
title  rest  with  the  heirs  at  common  law  of  those  who  re- 
ceived by  grant  from  the  King,  that  is,  the  patentees,  or  with 
those  who  as  proprietors  and  contributors  to  the  common 
fund  purchased  the  lands  from  the  Indians,  and  received 
their  shares  according  to  the  size  of  their  families  and  the 
amount  of  their  subscription?5  Judges,  too,  in  settling  all 

1  Talcott  Papers,  I,  p.  234. 

*  Talcott  Papers,  I,  p.  146.         *  Ibid.,  I,  pp.  122,  146. 

*  In   the   Middletown   Mss.    Proprietary   Records    there   is    "  An   Ac- 
count of  the   Interest  of  the  Several  Proprietors  of  the  Common  and 
Undivided    Lands    [computed]    according   to   the    Custom   of   Deviding 
Intestates  in  the  Colony  of  Connecticut."     Dec.  28,  1733.     A  study  of 
the   lists   herein   co'ntained   shows   graphically   the  practical   working  of 
the  intestacy  law.     In  1673  a  list  of  proprietors  had  been   drawn  up, 
52  in  number,  with  real  estate  "  rights  "  in  the  undivided  lands  ranging 
from  £224  to  £24.     In  1733  this  list  was  revised,  and  it  was  found  that 
by   constant    subdivision   of    "  rights "    through    purchase,   bequest   and 
intestacy   settlement,  the   number  of  proprietors  had   increased  to  328, 
the  number  of  "rights"  to  386   (circa)   ranging  in  value  from  £103  to 
9sh.  with  by  far  the  greater  number  valued  at  less  than   £5.     An  ex- 
amination of  such  lists  proves   how  impossible  it  would  have  been  to 
carry  out  the  Order  in  Council  voiding  the  law.     The  Middletown  pro- 
prietors paid  no  attention  whatever  to  the  king's  decree. 

5  Talcott  Papers,  I,  177.  It  is  not  unlikely  that  considerable  trouble 
might  have  been  caused  had  this  feature  of  the  case  been  brought  to  the 
attention  of  the  authorities  at  honje.  It  might  have  been  decided  in 
favor  of  the  Patentees  if  we  may  judge  from  the  legal  opinion  of  At- 


448  ///.     THE   COLONIAL   PERIOD 

these  disputes,  would  have  been  thoroughly  perplexed  as  to 
whether  they  should  obey  the  decree,  in  which  case  the 
foundation  of  the  colony  would  have  been  "  rip't  up  from 
the  bottom  and  the  country  undone ; "  1  or  whether  they 
should  disregard  the  decree,  and  so  bring  down  upon  the 
colony  the  loss  of  its  charter. 

But  the  injustice  would  have  concerned  others  besides 
those  holding  lands  derived  from  intestate  settlements. 
Creditors  who  had  taken  lands  in  payment  of  debts  —  a  pro- 
cedure not  in  favor  with  the  colony  because  of  the  cheapness 
of  lands  —  would  be  defrauded,  unless  the  lands,  which  might 
have  considerably  improved  in  their  hands,  had  been  made 
chargeable  for  the  original  loan  and  the  improvements.2 
Furthermore,  the  will  and  intent  of  many  who  had  died 
intestate  might  have  been  frustrated,  inasmuch  as  they, 
trusting  in  the  colonial  custom,  with  which  they  had  been 
perfectly  satisfied,  had  made  no  will.3 

In  addition  to  these  results,  so  contrary  to  justice  and 
equity,  certain  economic  consequences  would  have  inevita- 
bly followed  the  carrying  out  of  the  Order  in  Council,  con- 
sequences detrimental  not  merely  to  the  colony,  but,  judg- 
ing from  the  standpoint  of  her  clearly  avowed  colonial 
policy,  to  England  as  well.  The  voiding  of  the  law  meant 
the  abatement  of  husbandry.  The  towns  of  all  New  Eng- 
land, and  of  Connecticut  in  particular,  were,  at  this  stage  of 
their  development,  predominantly  agricultural.  The  results 
of  such  abatement  would  be  a  desertion  of  lands,  a  lessening 
of  population,  and  a  decrease  in  the  supply  to  the  neighbor- 
ing provinces,  which,  engaged  in  trade  and  fishery,  were 
dependent  on  Connecticut  for  provisions.4  It  was  a  clever 
stroke  on  the  part  of  the  colonial  supporters  of  the  law 

torney-General  Northey,  Aug.  7,  1703,  upon  an  Act  of  New  Hampshire 
for  Confirmation  of  Town  Grants,  "it  is  fit  that  same  be  repealed  for 
that  it  confirms  all  grants  of  lands  that  have  heretofore  been  made  unto 
any  person  or  persons  by  the  inhabitants  of  the  respective  towns  within 
that  Province  or  by  the  selectmen  or  a  committee  in  each  Town  without 
having  any  regard  to  or  saving  of  the  right  of  any  persons  who  might 
be  entitled  to  the  same  before  the  making  such  grants."  B.  T.  Papers, 
New  England,  M.  46. 

1  Talcott  Papers,     I,  p.  177. 

•Ibid.,  I  pp.  122,  146-147. 

•Ibid.,  I,  pp.  144,  189,  234.          «/&»<*.,  I,  p.  147. 


13.     ANDREWS:   COLONIAL    CONDITIONS   449 

when  they  showed  that  its  confirmation  was  adapted  to  the 
furthering  of  England's  policy,  and  that  its  vacation  was  to 
the  injury  of  that  policy.  Voiding  the  law  would  lead  to 
manufacturing,  for  the  younger  sons  from  sheer  necessity, 
driven  from  agriculture,  would  turn  to  trade  and  manufac- 
turing, or  else  would  be  obliged  to  leave  the  country.1  Thus, 
by  this  argument,  England  was  placed  on  the  horns  of  a 
dilemma  as  regards  the  colonies,  either  beggary  or  insufficient 
population  on  the  one  side,  or  the  promotion  of  trade  and 
manufactures  on  the  other.  This,  as  Law  surmised,  "  was  a 
tender  plot,"  and  there  is  no  doubt  that  as  an  argument 
it  was  frequently  repeated  in  order  that  it  might  be  "  thot 
of  at  home."  2  These  economic  results  are  sufficient  to  show 
that  the  law  was  an  organic  part  of  the  life  of  the  colony. 
Indeed,  as  Talcott  said  in  a  later  letter  to  Francis  Wilks 
in  London,  "  we  cannot  think  our  law  will  be  looked  upon 
to  be  contrary  to  the  law  of  England  for  the  colony  could 
not  have  been  settled  without  it."  3 

The  colony  immediately  made  every  effort  through  its 
agents,  Dummer,  Belcher,  and  Wilks,  to  defend  the  law  if 
possible.  There  was  reason  for  hope  in  such  action  from  the 
fact  that  the  Massachusetts  law  of  1692,  after  which  the 
Connecticut  law  has  been  modeled,  with  one  amendment, 
one  addition,  and  three  explanatory  acts  had  been  confirmed 
by  the  Crown.4  Furthermore,  the  law  was  a  general  one  in 
New  England  and,  if  the  Order  in  Council  were  to  be  insisted 
on,  it  might  endanger  the  titles  to  a  considerable  amount  of 
New  England  real  estate ;  and  it  would  seem  incredible  that 
the  home  government  could  persist  in  so  crippling  the  col- 
onies.5 Therefore  the  colony  was  justified  in  believing  that, 
if  all  the  arguments  were  fairly  presented  to  the  Lords  of 

1  Talcott  Papers,  I,  pp.  147,  189;   II,  pp.  245-248. 
•Ibid.,  I,  p.  123.        • Ibid.,  II,  p.  246. 

4  Ibid.,  II,  p.  79,  Mass.  Hist.  Soc.  Proc.,  1860-62,  p.  72-73. 

5  Talcott  Papers,  I,  pp.  153-154.     pp.  77-85.     Governor  Talcott  says 
that  the  law  had  been  sent  over  with  other  laws  "  some  thirty  years  ago," 
by  Gov'r  Winthrop  and  that  as  nothing  was  said  about  the 'law  then  the 
colony  had  reason  to  think  itself  safe.     There  is  a  mistake  here  some- 
where;   the  law  was  passed  in  1699  and  Gov'r  Winthrop  sent  over  the 
Book  of  Laws   as   an   enclosure  in  his  letter  of  Oct.  27,  1698.     B.  T. 
Papers,  Proprieties  2A.     It  may  be  that  he  is  referring  to  the  October 
order  as  revised  in  1673. 


450  ///.     THE   COLONIAL   PERIOD 

Trade,  the  good  offices  of  that  Board  might  be  obtained.1 
This  was  an  important  step,  for  by  the  report  of  the  com- 
mittee of  the  Council  the  matter  had  been  referred  to  the 
Board.2 

The  strongest  argument  against  the  law  was  that  it  was 
contrary  to  the  law  of  England,  and  in  the  discussion  which 
followed  the  colony  exerted  all  its  strength  to  minimize  the 
force  of  this  argument.  The  question  is  an  important  one 
in  itself,  but  the  value  of  the  discussion  lies  in  the  expression 
of  opinion  on  the  part  of  the  English  and  the  colonial 
authorities  regarding  the  interpretation  and  strict  construc- 
tion of  the  phrase  "  contrary  to  the  law  of  England."  There 
were  three  views  held  regarding  the  English  law  in  the  col- 
onies, as  to  how  far  it  was  binding  there,  and  to  what  extent 
the  colonial  corporations  had  been  invested  by  their  charters 
with  law-making  powers.  The  first  of  these  opinions  was 
held  by  all  those  who  were  opposed  to  the  colonial  preroga- 
tives, such  as  Palmes,  Hallam,  Gershom  Bulkeley,  in  his 
"  Will  and  Doom,"  Winthrop  the  appellant,  in  his  "  Com- 
plaint "  and  "  Memorial,"  Dudley  and  others.  According  to 
this  view  the  colonies  were  erected  as  corporations  within 
the  kingdom  of  England;  they  held  by  and  were  subject  to 
the  laws  of  that  kingdom,  and  their  legislative  power  ex- 
tended to  the  making  of  by-laws  and  ordinances  only  for 
their  own  good  government,  provided  the  same  were  not 
contrary  to  the  law  of  England.3  From  this  point  of  view 

1  Talcott  Papers,  I,  pp.  174,  249. 

*Ibid.,  I,  pp.  200-201.    B.  T.  Papers,  Proprieties,  R.  108. 

8  Talcott  Papers,  I,  p.  393.  Dudley  in  his  letter  to  the  Board  of 
Trade  expresses  this  view.  "  On  the  part  of  the  Crown  it  would  be  pro- 
vided [in  case  a  union  of  colonies  was  affected]  that  the  laws  of  Eng- 
land, common  and  statute,  which  have  hitherto  always  been  or  ought  to 
have  been  the  laws  of  all  those  provinces,  should  be  so  declared  and  the 
government  there  directed  to  present  to  the  King  not  Magna  Charta  or 
chapters  of  capital  laws,  but  such  by-laws  as  the  several  provinces  in 
their  settlements  require,  which  are  not  provided  for  by  the  common 
and  statute  law  of  England."  B.  T.  Papers,  New  England,  vol.  7,  F.  13. 
For  Dudley's  motives  see  Palfrey  IV,  pp.  367-368.  Bulkeley  said  in  his 
"  Will  and  Doom,"  "  We  think  that  the  colony  of  Connecticut  is  de  Jure 
(we  wish  we  could  say  de  facto)  as  much  subject  to  the  Crown  of  Eng- 
land as  London  or  Oxford."  Again,  "forgetting  .  .  .  that  their 
Courts  are  but  inferior  Courts  and  their  laws  not  laws  properly  so 
called  or  parcel  of  the  Laws  of  England  but  only  By-Laws,  i.e.  the 
Local,  private  and  particular  orders  of  a  corporation." 


13.     ANDREWS:   COLONIAL   CONDITIONS   451 

all  laws  passed  by  the  colonial  assemblies  which  were  of  a 
higher  character  than  by-laws,  and  which,  even  within  that 
limit,  touched  upon  matters  already  provided  for  by  Eng- 
lish common  or  statute  law,  were  illegal.  The  colonies  were 
as  towns  upon  the  royal  demesne. 

The  second  view  was  expressed  by  the  agent  of  Connec- 
ticut, Francis  Wilks,  arid  was  doubtless  held  by  those  at 
home  who,  with  English  proclivities,  were  nevertheless  well 
disposed  toward  the  colonies.  According  to  this  view,  it  fol- 
lowed that  when  the  colonists  came  to  America  they  brought 
with  them  the  common  law  to  which  they  were  entitled  as 
Englishmen,  and  such  part  of  the  statute  law  as  was  in  force 
before  the  settlement  of  the  plantations  took  place.  To  this 
body  of  law,  written  and  unwritten,  binding  on  the  colonies, 
were  to  be  added  all  such  later  Acts  of  Parliament  as  ex- 
pressly mentioned  the  plantations,  and  such  Acts  as  had  been 
re-enacted  for  the  colony  by  her  own  legislature.1  But  no 
other  statutes  passed  since  the  settlement  could  be  held  as 
binding.  Therefore,  according  to  Wilks,  that  law  was  con- 
trary to  the  law  of  England  which  was  contrary  to  the  com- 
mon and  statute  law  prior  to  the  settlement,  or  to  the  statute 
law  made  afterwards  which  expressly  mentioned  the  planta- 
tions. 

Both  of  these  views,  however,  were  strictly  opposed  by 
the  colony.  To  the  statement  that  the  common  and  statute 
law  existent  at  the  time  of  the  settlement  was  in  force 
in  the  colonies,  the  answer  was  made  that  the  charter 
nowhere  directed  the  administration  to  be  according  to  one 
law  or  another,  whether  civil,  common,  or  statute  law ; 2  that 
by  a  decision  of  the  Council  itself  an  uninhabited  and  con- 
quered country  was  to  be  governed  by  the  law  of  nations 
and  of  equity  until  the  conqueror  should  declare  his  laws,3 
and  that  if  such  declaration  had  not  been  made,  then  it  was 
evident  that  the  law  of  equity  and  of  nations  governed  and 
not  the  common  or  statute  law  of  England.4  Therefore,  the 

1  Talcott  Papers,  I,  p.  274. 
•Ibid.,  I,  pp.  149,  158. 

*  Blancard  v.  Oaldy,  Salkeld's  Reports,  I,  p.  411.     Talcott  Paper*,  I, 
p.  144;    II,  Appendix,  "Instruction  to  Agent." 

•  Talcott  Papers,  I,  p.  148. 


452  ///.     THE    COLONIAL   PERIOD 


colony  argued,  English  common  law  could  be  binding  be- 
yond the  sea  only  in  case  it  had  been  accepted  by  the  col- 
onist's own  choice.1  From  the  nature  of  the  laws  passed,  it 
is  evident  that  the  colonial  government  never  considered  the 
common  law  to  be  in  force  within  its  jurisdiction,  and  in  this 
belief  it  said  it  had  never  been  corrected  or  otherwise  in- 
structed from  the  throne.  In  this  connection  Governor 
Talcott  pertinently  asks,  "  And  why  should  we  be  directed 
to  make  laws  not  contrary  to  the  laws  of  England  if  they 
were  our  laws,  for  what  propriety  can  there  be  in  making 
that  a  directory  to  us  in  making  a  law  which  was  our  law 
before  we  made  it."  2  As  this  was  the  case,  it  is  evident  that 
something  more  was  implied  in  the  charter  than  the  making 
of  by-laws.  In  that  document  was  proposed  an  object,  the 
religious,  civil,  and  peaceable  government  of  the  colony,  which 
could  not  have  been  attained  by  the  passing  of  by-laws.  The 
charter  implied  a  power  to  enact  in  the  colony  that  which 
was  law  in  England  and  also  any  good  and  wholesome  law 
which  was  not  contrary  to  it;  and  such  limitations  could 
not  be  to  by-laws  only.3  Furthermore,  the  colony  insisted 
that  the  analogy  to  a  municipal  corporation  in  England 
was  not  sound,  inasmuch  as  it  was  the  privilege  of  English- 
men to  be  governed  by  laws  made  with  their  own  consent.4 
The  colonies  were  not  represented  as  were  the  English  towns 
in  Parliament;  therefore  the  only  laws  made  with  the  con- 
sent of  the  colonies  were  those  of  their  own  legislatures,  and 
those  were  more  than  by-laws.  The  opinion  of  the  colony, 
therefore,  was  that  the  phrase,  "  contrary  to  the  law  of 
England,"  referred  only  to  laws  contrary  to  those  Acts  of 
Parliament  which  were  in  express  terms  designed  to  extend 
to  the  plantations.5  That  this  had  been  the  practice  as  well 
as  the  theory  in  Connecticut  is  evident  from  Congreve's  letter 
to  the  Board  of  Trade,  in  which  he  says,  "  They  allow  of 

1 "  The  common  law  always  hath  its  limits  environ'd  by  the  sea."  Tal- 
cott Papers,  II,  Appendix,  "  Instructions  to  Agent,"  p.  492. 

*Ibid.,  II,  Appendix,  "Instructions  to  Agent."  These  instructions 
were  drawn  up  by  John  Read  and  not  by  Talcott,  II.  489  note. 

•Ibid.,  I,  p.  149. 

'Ibid.,  I,  p.  159;   II,  Appendix,  "Instructions  to  Agent" 

*Ibid.,  I,  p.  152. 


13.     ANDREWS:   COLONIAL    CONDITIONS   453 

none  of  the  laws  of  England  either  common  or  statute  to  be 
pleaded  in  their  courts."  * 

According  to  the  opinion  held  by  Winthrop  and  Wilks  the 
intestate  law  was  clearly  contrary  to  the  law  of  England. 
Even  Lieutenant  Governor  Law  of  the  colony  seems  to  have 
inclined  to  this  view,  for  he  came  to  the  conclusion  that  the 
colony  in  acting  in  the  past,  contrary  to  the  view  expressed 
by  Wilks,  had  been  mistaken.2  But  Gov.  Talcott  was  led  into 
no  such  concession ;  he  stood  firmly  on  the  ground  already 
taken,  and  adroitly  persisted  in  maintaining  the  complete 
validity  of  the  intestate  law.  He  probably  realized  that 
under  the  circumstances  concession  was  more  dangerous  than 
resistance,  and  that  to  accept  Wilks's  theory  would  be  to 
strike  a  blow  at  the  absolute  integrity  of  the  charter.  "  We 
would,"  he  writes,  "  with  the  greatest  prostration  request 
your  Majesty,  that  when  we  find  any  rules  of  law  needful  for 
the  welfare  of  your  Majesty's  subjects  here,  which  is  not 
contrary  to  and  agrees  well  with  some  one  of  the  Tryangles 
of  the  law  of  England,  as  it  then  is,  or  heretofore  had  been, 
when  England  might  have  been  under  the  like  circumstances 

1 B.  T.  Papers,  Proprieties,  M.  49.  See  also  Talcott  Papers,  I,  p.  154. 
Gershom  Bulkeley  says  much  the  same  in  his  "  Will  and  Doom,"  but 
facts  come  to  us  from  'his  pen  strangely  distorted,  while  his  arguments 
are  full  of  pedantry  a.nd  bitterness.  "  The  case  is  otherwise  with  us, 
their  Majesties  are  not  yet  received  to  reign  in  Connecticut,  their  laws 
are  of  no  force  or  effect  here."  ..."  The  abolition  of  the  Common  and 
Statute  laws  of  England  and  so  of  all  humane  laws,  except  the  forgeries 
of  our  own  popular  and  rustical  shop  ...  A  strange  fancy  that  com- 
ing over  from  England  to  another  of  the  King's  dominions  we  should 
so  far  cease  to  be  his  subjects  as  that  the  laws  of  our  King  and  Nation 
should  not  reach  us."  The  most  recent  legal  decision  affecting  our  sub- 
ject is  that  of  Justice  Baldwin  in  "  Campbell's  Appeal  from  Probate," 
64  Connecticut  Reports,  1894.  He  held  that  the  Connecticut  rule  of  in- 
heritance, differing  fundamentally  from  the  rule  of  England,  had  been 
the  uniform  doctrine  of  the  Connecticut  courts  (p.  290)  ;  and  he  gave  it 
as  his  opinion  "  that  the  common  law  rule  of  the  exclusion  from  inherit- 
ance of  all  tracing  their  descent  through  uninheritable  blood  was  never 
in  force  in  Connecticut"  (p.  292).  His  decision  is  both  historically  and 
judicially  sound. 

*  Talcott  Papers,  I,  p.  121.  It  was  Jonathan  Law  who  in  1731  drafted 
the  "  Act  for  the  Settlement  of  Intestate  Estates,"  which  was  to  take 
the  place  of  the  old  Act.  It  excluded  females  from  the  inheritance,  but 
admitte'd  the  younger  sons  to  inherit  with  the  eldest  son,  as  co-heirs. 
This  did  not  better  matters  at  all  for  it  was  equally  contrary  to  the 
common  law  of  England  with  the  older  Act.  State  Archives,  Civil  Offices 
II,  doc.  169.  Foreign  Correspondence  II,  doc.  146.  See  Wilks's  remarks 
upon  this  Act.  Talcott  Papers,  I,  p.  241. 


454  ///.     THE    COLONIAL    PERIOD          , 

in  that  particular,  which  we  are  when  we  make  the  law,  that 
it  might  not  be  determined  to  be  contrary  to  the  law  of  Eng- 
land." » 

The  opinions  of  the  English  lawyers  of  this  period,  so  far 
as  I  am  able  to  discover  them,  are  neither  definite  nor  com- 
plete. In  a  report  to  the  Board  of  Trade,  Attorney  General 
Yorke  and  Solicitor  General  Talbot  upheld  the  colony's 
position  regarding  by-laws.  They  affirmed  that  the  assem- 
bly of  the  colony  had  the  right  by  their  charter  to  make  laws 
which  affected  property,  on  condition  that  such  laws  were 
not  contrary  to  the  law  of  England ;  but,  although  it  seems 
probable  that  they  intended  "  law  of  England  "  to  cover  the 
whole  law,  they  did  not  make  it  clear  what  they  meant  by  this 
term.2  Yet  these  same  lawyers  in  a  later  judgment  declared 
that  in  one  particular  case,  the  barring  of  an  heir  to  entailed 
lands  lying  in  the  plantation  by  a  process  of  fine  and  recov- 
ery in  England,  the  common  law  did  not  extend  to  the  planta- 
tions, unless  it  had  been  enacted  in  the  plantation  where  the 
entailed  lands  lay.3  The  Board  itself  supported  the  colony 
against  adverse  criticism  4  when  it  stated  that  according  to 
the  charter  the  laws  were  not  repealable  by  the  Crown,  but 
were  valid  without  royal  confirmation  unless  repugnant  to 
the  law  of  England.5  The  most  definite  expression  of  opinion, 
however,  was  adverse  to  the  view  which  the  colony  took.  Mr. 
West,  in  a  judgment  rendered  regarding  admiralty  juris- 
diction in  the  plantations,  took  the  ground  that  wherever  an 
Englishman  went  there  he  carried  as  much  of  law  and  liberty 
with  him  as  the  nature  of  things  allowed;  that,  in  conse- 

1  Talcott  Papers,  I,  pp.  149-150. 

*B.   T.  Papers,  Proprieties,  R.  130.     Aug.  1,  1730. 

•  Talcott  Papers,  I,  p.  238.  II,  Appendix.  "  Instructions  to  Agent," 
p.  493. 

*Ibid.  I,  p.  152,  Winthrop's  8th  Complaint.  II,  pp.  75-76,  Parris' 
Opinion. 

8 "  Copy  of  a  Representation  of  the  Board  of  Trade  to  the  House  of 
Lords"  Jan.  23,  1733-34.  British  Museum,  8223  e-15.  Mentioned  by 
Wilks,  Talcott  Papers,  I,  p.  294.  In  1760  the  Board  took  a  different 
view  "  supporting  his  Majesty's  right  to  examine  into  every  provincial 
law  and  to  give  or  to  withhold  his  negative  upon  any  good  "reasons 
which  may  be  suggested  to  him  by  the  wisdom  of  his  Privy  Council  or 
by  his  own  royal  prudence  and  discretion."  B.  T.  Papers,  Proprieties, 
Entry  Book,  I,  ff.  299-307;  Cf.  opinion  of  House  of  Lords,  1734,  Tal- 
cott Papers,  I,  p.  297. 


13.     ANDREWS:  COLONIAL    CONDITIONS   455 

quence  of  this,  the  common  law  of  England  was  the  common 
law  of  the  colonies,  and  that  all  statutes  in  affirmance  of  the 
common  law  passed  in  England  antecedent  to  the  settlement 
of  any  colony  were  binding  upon  that  colony.  He  also  held, 
as  did  Wilks,  that  no  statutes  made  since  the  settlements 
were  in  force  unless  the  colonies  were  particularly  men- 
tioned.1 His  view,  which  I  do  not  doubt  was  very  generally 
held  by  English  lawyers  outside  of  the  colony,  was  simply 
a  legal  opinion,  and  was  probably  based  on  little  real  knowl- 
edge of  the  subject  to  which  it  referred.  We  are>  therefore, 
fortunate  in  having  another  and  different  view  of  the  matter 
of  greater  practical  value.  In  1773  the  legal  advisor  of  the 
Board,  Francis  Fane,  returned  to  the  Board  his  comments 
upon  the  first  installment  of  the  laws  of  Connecticut  and  he 
completed  his  examination  of  the  entire  387  laws  in  1741.  In 
this  report  opinion  came  face  to  face  with  facts,  and  the 
lawyer  realized  the  anomaly  of  attempting  to  force  English 
law  upon  a  people  whose  conditions  of  life  were  in  so  many 
particulars  different  from  those  at  home.  In  his  comment 
upon  the  intestate  law  Fane  notices  that  it  was  different  from 
the  law  of  England,  but  it  is  evident  that  this  aspect  of  the 
case  troubles  him  little.  He  is  chiefly  concerned  with  matters 
of  rule,  form,  and  procedure,  and  it  is  in  these  particulars 
that  his  real  objection  to  the  law  lies.  He  recommends  the 
repeal  of  the  Act,2  but  would  substitute  another  law  "  either 
as  it  is  now  done  in  England  or  by  such  other  methods  as 
may  best  fit  the  province  where  this  law  is  to  take  effect." 
In  this  statement  there  was  for  the  colony  a  world  of  mean- 
ing. Furthermore,  in  his  criticism  of  the  later  amendments 
and  additions  to  the  law  he  says  nothing  about  their  being 
contrary  to  the  law  of  England ;  his  recommendations  for 
repeal  are  based  upon  the  ground  of  uncertainty  or  upon 
some  other  defect  of  the  law  which  would  naturally  attract 
a  lawyer.  An  analysis  of  his  comments  upon  the  remaining 

1 "  Mr.  West's  Report  relating  to  the  Admiralty  Jurisdiction  prac- 
ticed in  the  Plantations."  June  20,  1730.  B.  T.  Papers,  Plantations 
General,  L.  10. 

*  Fane  evidently  took  it  for  granted  that  the  Connecticut  laws  could 
be  repealed  hy  the  King  in  Council.  It  is  not  probable  that  the  Board 
had  instructed  him  on  that  point. 


456  ///.     THE   COLONIAL   PERIOD 

884)  laws l  gives  us  approximately  the  same  result.  The 
laws  recommended  for  repeal  were  too  strict,  severe  or  un- 
reasonable, incomplete  or  not  severe  enough,  inexact,  giving 
too  much  power  to  certain  bodies,  etc.  In  only  one  instance 
is  a  law  declared  contrary  to  the  law  of  England,  and  then 
it  is  the  legal  principle  implied  in  a  part  of  the  law  that  a 
man  can  be  convicted  on  a  general  presentment  which  is 
declared  repugnant.  It  is  true  that  in  a  number  of  cases 
he  recommends  the  repeal  of  a  law  which  is  different  from 
the  law  of  England,  but  it  is  not  on  the  ground  of  its  differ- 
ence that  the  recommendation  is  made;  it  is  because  the  law 
is  unsatisfactory  from  a  legal  standpoint  and  would  not  be  a 
good  law  in  any  civilized  community.  In  nine  cases,  how- 
ever, he  considers  the  colony's  convenience,  and  recommends 
the  acceptance  of  the  law,  even  though  it  would  not  have  been 
proper  for  England  or  was  not  so  good  as  the  corresponding 
law  in  England.  In  these  instances  he  recognizes  the  prin- 
ciple that  the  colony  was  generally  the  best  judge  of  its  own 
law,  and  practically  concedes  two  of  the  points  for  which  the 
colony  contended,  the  principle  of  equity  and  that  of  custom. 
Fane's  comments  are  uniformly  fair  and  reasonable,  and  con- 
tain not  a  trace  of  animus  toward  the  colonies.2 

The  circumstances  and  discussions  thus  far  outlined  are 
necessary  to  an  understanding ,  of  the  influences  that  acted 
upon  the  Board  when  it  came  to  draw  up  its  representation 
to  the  committee  of  the  Council  upon  the  petition  of  Belcher 

'The  following  is  an  analysis  of  the  report: 

There  are  in  the  list  387  Acts  and  3  Resolutions.  Of  the  Acts  312  are 
good,  proper,  well  contrived  for  the  purpose  intended,  reasonable,  con- 
taining nothing  amiss,  fit  to  be  confirmed,  open  to  no  objection  or  agree- 
able to  the  conveniences  of  the  colony,  and  75  are  open  to  objection  and 
should  be  repealed.  Of  the  latter  28  are  too  severe  or  unreasonable, 
2  are  not  severe  enough,  9  are  too  loose,  inexact,  or  uncertain,  6  give  too 
much  power  to  the  selectmen,  the  county  court  or  the  court  of  assist- 
ants, 3  omit  certain  necessary  definitions  or  limitations  of  the  corre- 
sponding English  law,  7  are  different  from  the  law  of  England  and  for 
the  object  intended  inferior  to  the  English  law,  2  are  incomplete  in 
themselves,  9  concern  Bills  of  Credit,  3  the  intestate  law,  5  are  good  in 
part  and  1  has  been  repealed.  It  would  be  worth  while  as  a  commen- 
tary upon  Gershom  Bulkeley's  "  Will  and  Doom  "  to  compare  his  parti- 
san arraignment  of  the  Connecticut  laws  with  the  judicial  criticisms  of 
Francis  Fane. 

*"  Francis  Fane  on  the  Connecticut  Laws."  B.  T.  Papert,  Proprie- 
tie$,  V.  19-27. 


13.     ANDREWS:   COLONIAL   CONDITIONS   457 

and  Dummer.1  In  this  petition  the  colony  begged  the  King 
to  confirm  by  an  order  in  Council  to  the  inhabitants  of  the 
province  the  lands  already  distributed  under  the  intestate 
law,  to  quiet  them  therein,  and  to  enable  them  to  divide  the 
lands  of  intestates  in  the  same  manner  in  the  future.2  The 
colony  had  already  discussed  at  considerable  length  the 
wording  of  the  petition,  debating  whether  it  would  be  best 
to  ask  for  a  confirmation  by  an  Order  in  Council,  or  to  apply 
for  leave  to  bring  forward  a  bill  in  Parliament.  Belcher 
strongly  advocated  the  latter  method.3  Talcott  in.  a  forcible 
communication  presented  his  fears  of  Parliament  in  case  the 
matter  were  brought  to  its  attention,  and  he  had  good  reason 
to  fear  if  we  are  to  judge  from  later  events.  He  was  a 
prophet  in  his  apprehension  that  it  might  lead  Parliament 
to  inquire  whether  the  government  had  not  accustomed 
itself  to  take  the  same  liberty  of  making  other  laws  contrary 
to  the  law  of  England ;  and,  further,  that  it  might  lead  Par- 
liament to  the  opinion  that  the  charter  had  not  made  them 
a  government  or  province  but  only  a  corporation.  Yet,  on 
the  other  hand,  it  was  equally  true  that  neither  the  petition 
of.  Belcher  nor  the  introduction  of  a  bill  in  Parliament  was 
needed,  if  that  body  had  desired  to  end  the  privileges  of 

1  The  order  of  events  may  be  briefly  given.  The  petition  was  sent  to 
the  King  in  February,  1730;  it  was  referred  to  the  Committee  on  Ap- 
peals Apr.  10,  and  to  the  Board  of  Trade  Apr.  15.  The  Order  in  Coun- 
cil and  the  Petition  were  read*  before  the  Board  Apr.  21,  and  the  letter 
of  inquiry  was  sent  to  the  Crown  lawyers  the  next  day.  The  Memorial 
of  Winthrop  in  reply  to  the  Petition  was  received  and  read  on  the  28th, 
and  was  sent  to  the  Crown  lawyers  two  days  after.  On  the  13th  of  May, 
the  Crown  lawyers  not  having  replied,  a  letter  was  sent  to  remind  them 
of  the  Board's  request.  Finally,  on  Aug.  1,  they  replied  and  their  re- 
port was  read  Aug.  13,  when  the  preparations  for  the  representation  to 
the  Committee  of  the  Council  were  begun:  a  draught  of  the  representa- 
tion was  ordered  on  Nov.  12,  and  on  the  18th  a  letter  with  the  Petition 
and  the  Memorial  was  sent  to  Francis  Fane.  He  replied  on  the  21st 
and  his  report  was  read  on  the  24th  and  the  work  upon  the  draught  was 
continued.  On  Dec.  2,  the  agents,  Dummer  and  Wilks  with  Winthrop, 
were  summoned  before  the  Board,  and  appeared  and  presented  their 
case  on  Friday,  the  4th.  On  the  8th  the  draught  of  the  representation 
was  agreed  upon,  and  on  the  31st  it  was  signed.  B.  T.  Papers,  Proprie- 
ties, Entry  Book,  H,  ff.  10-11,  23,  39.  Journal,  40.  ff.  90,  97,  104,  111, 
209,  221,  295,  299,  303,  312,  316,  322,  339. 

*B.  T.  Papers,  Proprieties,  R.  108.  I  have  used  the  copy  of  the  peti- 
tion sent  down  from  the  committee  to  the  Board  of  Trade,  instead  of 
the  transcript  enclosed  by  Belcher  in  his  letter  to  Talcott,  Feb.  10,  1730, 
and  printed  in  the  Talcott  Papers,  I,  pp.  187-190. 

*  Talcott  Papers,  I,  pp.  167-168. 


458  ///•     THE    COLONIAL    PERIOD 

Connecticut  in  1730  as  it  practically  did  those  of  Massachu- 
setts in  1774.1 

It  is  not  quite  clear  to  which  conclusion  the  agents  ar- 
rived, though  in  the  petition  upon  which  the  Board  based 
its  representation,  confirmation  was  asked  for  by  an  Order  in 
Council.2  This  request  at  once  raised  an  exceedingly  impor- 
tant question  expressive  of  the  political  change  which  had 
come  over  England  since  the  Revolution  of  1688.  Could  the 
King  by  virtue  of  his  prerogative  and  without  the  assistance 
of  Parliament  grant  the  wish  of  the  colony?  To  this  Attor- 
ney Francis  Fane  answered,  at  the  request  of  the  Board,  as 
follows :  "  I  cannot  pretend  to  say  whether  the  King  by  vir- 
tue of  his  prerogative  can  do  what  is  desired  by  the  peti- 
tioners. But  I  must  submit  it  to  your  Lordship's  considera- 
tion supposing  the  King  had  a  power  by  his  prerogative  of 
gratifying  the  request,  whether  under  the  circumstances  of 
this  case  it  would  not  be  more  for  his  Majesty's  service  to 
take  the  assistance  of  Parliament,  as  that  method  will  be  the 
least  liable  to  objection  as  well  as  the  most  certain  and  effec- 
tual means  of  gratifying  the  request  of  the  petitioners." ! 
That  this  was  the  opinion  widely  held  among  English  lawyers 
is  evident  from  Belcher's  letters,  in  which  he  mentions  Lord 
Chancellor  King  and  the  counsel  which  he  had  secured  as 

inclined  to  this  view.  4 

• 

1  Talcott  Papers,  I,  pp.  175-179.  The  history  of  the  relations  between 
Parliament  and  the  proprietary  and  charter  colonies  since  1701  shows 
the  accuracy  of  Talcott's  judgment.  The  representation  of  the  Board 
of  Trade  upon  the  petition,  the  resolution  of  the  House  of  Lords  and 
the  revival  of  the  effort  to  introduce  a  bill  into  Parliament  in  1731  to 
unite  Connecticut  and  Rhode  Island  (Talcott  Papers,  I,  p.  221)  were  a 
speedy  fulfilment  of  Talcott's  fears.  There  is  history  here  to  be  written. 
See  Judge  Chamberlain's  remarks,  op.  cit.,  pp.  131-133. 

*  The  petition  upon  which  the  Board  based  its  representation  contains 
the  words  "pray  your  Majesty  to  be  pleased  by  your  Order  in  Council 
to  confirm,"  the  petition  which  Belcher  enclosed  to  Talcott  says  "  pray 
that  you  would  be  pleas'd  to  give  leave  that  a  bill  may  be  brought  into 
this  present  Parliament  of  Great  Britain  to  confirm."  It  is  evident  that 
the  latter  was  the  form  originally  intended  to  be  used  (Talcott  Papers, 
I,  pp.  184,  191).  But  probably  Talcott's  fears  of  Parliament,  and  par- 
ticularly the  pressure  of  more  weighty  matters  upon  Parliament  just 
at  that  time,  induced  a  change,  and  the  petition  was  altered  and  request 
for  a  confirmation  by  Order  in  Council  inserted  instead.  (Ibid.,  I,  p. 
197.) 

8  B.  T.  Papers,  Proprieties,  R.  132. 

4  Talcott  Papers,  I,  pp.  167,  168,  184,  259. 


13.     ANDREWS:   COLONIAL   CONDITIONS   459 

With  this  opinion  of  its  legal  advisor  before  it,  the  Board 
summoned  to  its  presence  the  agents  of  the  colony  and  Win- 
throp  and  listened  to  the  arguments  on  both  sides.1  It  then 
finished  the  draught  of  its  own  representation.  Many  in- 
fluences underlay  the  wording  of  that  report,  influences 
which  it  has  been  the  purpose  of  this  paper  to  disclose.  The 
report  was  the  resultant  of  at  least  three  forces:  first,  the 
desire  to  gratify  the  colony  in  confirming  the  lands  already 
settled  under  the  intestate  law,  for  Dummer  had  ably  pre- 
sented the  inconveniences  which  would  follow  the  upholding 
of  the  decree  of  the  Council;  secondly,  the  determination  to 
syncopate  the  privileges  of  Connecticut  on  the  ground  that 
she  had  been  too  independent  of  the  Crown,  and  had  too  long 
a  list  of  charges  against  her  to  escape  some  limitation  of  her 
powers ;  and  thirdly,  the  conviction,  in  view  of  the  changing 
constitutional  relations  of  King  and  Parliament,  that  the 
only  safe  method  whereby  such  end  could  be  accomplished 
was  to  apply  to  the  King  for  leave  to  bring  in  a  bill  for  that 
purpose. 2  A  few  extracts  from  the  report  will  exemplify 
this.  After  recommending  compliance  with  the  request  of 
the  colony,  the  Board  adds,  "  And  we  think  this  may  be 
done  by  his  Majesty's  royal  license  to  pass  an  Act  for  that 
purpose  with  a  saving  therein  for  the  interest  of  John  Win- 
throp,  Esq.  But  we  can  by  no  means  propose  that  the 
course  of  succession  to  lands  of  inheritance  should  for  the 

1  The  minute  in  the  Board  of  Trade  Journal  is  as  follows:  "Mr. 
Dummer  and  Mr.  Wilks  attending,  as  they  had  been  desired  with  Mr. 
Winthrop,  their  Lordships  desired  to  know  from  them  how  the  colony 
of  Connecticut  would  be  affected  by  the  annulling  the  Act  for  settling 
intestate  estates.  And  Mr.  Dummer  acquainted  the  Board  that  the 
colony  would  be  reduced  to  the  utmost  confusion  if  their  estates  as  they 
now  hold  them  should  not  be  secured  to  the  present  possessors,  their 
tenures  being  liable  to  be  reversed  or  at  least  to  be  disputed  in  a  man- 
ner that  cannot  fail  to  be  expensive  and  vexatious.  Upon  the  with- 
drawal of  these  gentlemen  their  Lordships  agreed  to  consider  the  matter 
further  at  another  opportunity."  B.  T.  Journal,  40,  f.  316.  It  is  a  little 
remarkable  that  the  clerk  of  the  Board  makes  no  mention  of  Winthrop's 
speech,  for  in  Wilks's  report  of  the  interview  we  are  told  that  he  spoke 
at  some  length.  Talcott  Papers,  I,  pp.  217-218.  Perhaps  Mr.  Winthrop 
had  overreached  himself.  (Ibid.,  pp.  166,  171.) 

*  Judge  Chamberlain  says  that  this  recommendation  of  the  Board 
marks  a  changing  constitutional  policy  in  the  direction  of  parliamentary 
supremacy  over  the  colonies  which  finally  led  to  the  severance  of  the 
empire.  Op.  cit.,  pp.  134,  136. 


400  ///.     THE    COLONIAL   PERIOD 

future  be  established  upon  a  different  footing  from  that  of 
Great  Britain.  In  return  for  so  great  a  favor  from  the 
Crown  we  apprehend  the  people  of  Connecticut  ought  to 
submit  to  the  acceptance  of  an  explanatory  charter  whereby 
that  colony  may  for  the  future  become  at  least  as  dependent 
upon  the  Crown  and  their  Native  Country  as  the  people  of 
Massachusetts  Bay  now  are  whose  charter  was  formerly  the 
same  with  theirs.  And  we  think  ourselves  the  rather  bound 
in  duty  to  offer  this  to  his  Majesty's  consideration  because 
the  people  of  Connecticut  have  hitherto  affected  so  entire  an 
independence  of  Great  Britain  that  they  have  not  for  many 
years  transmitted  any  of  their  laws  for  his  Majesty's  con- 
sideration nor  any  account  of  their  public  transactions. 
Their  governors  whom  they  have  a  right  to  choose  by  their 
charter  ought  always  to  be  approved  by  the  King,  but  no 
presentation  is  ever  made  by  them  for  that  purpose.  And 
they,  tho  required  by  bond  to  observe  the  laws  of  Trade 
and  Navigation,  never  comply  therewith,  so  that  we  have 
reason  to  believe  that  they  do  carry  on  illegal  commerce  with 
impunity,  and  in  general  we  seldom  or  never  hear  from  them 
except  when  they  stand  in  need  of  the  countenance,  the  pro- 
tection or  the  assistance  of  the  Crown." 

With  this  report  the  case  of  Winthrop  vs.  Lechmere, 
growing  as  it  did,  out  of  the  land  system  of  the  New  Eng- 
land colonies,  has  brought  us  step  by  step  dangerously  near 
to  the  principles  and  theories  which  underlay  restriction  on 
the  one  side  and  revolution  on  the  other.  How  far  this  par- 
ticular case  and  the  discussions  which  grew  out  of  it  aided 
in  the  shaping  of  those  principles,  we  need  not  attempt  to. 
discover.  As  part  of  the  larger  question  of  the  uniting  of 
the  colonies  and  the  annulling  of  the  charters,  its  influence 
was  direct  and  definite.  After  1700  the  fact  of  parliamen- 
tary supremacy  was  proven  each  time  an  effort  was  made  to 
limit  the  independence  of  the  proprietary  and  charter  colonies 
and  to  bind  them  more  firmly  to  the  Crown ;  and  at  the  same 
time  the  continuance  of  such  efforts  for  thirty  years  increased 
the  familiarity  of  Parliament  with  the  task  of  controlling  the 

>B.   T.  Papers,  Proprieties,  Entry  Book,  H.  ff.  25-27.     Cf.  Wilks's 
statement  in  Talcott  Papers,  I,  pp.  '217-219,  222. 


13.    ANDREWS:   COLONIAL   CONDITIONS   461 

colonies.  In  this  the  English  authorities  were  not  showing 
themselves  either  arbitrary  or  despotic.  The  Board  of 
Trade,  the  Crown  lawyers,  even  the  Privy  Council  acted 
according  to  their  convictions,  which,  though  honest,  were 
based  undoubtedly  upon  insufficient  and  ex  parte  information. 
Connecticut's  policy  of  reticence  was  in  part  responsible  for 
this;  she  had  made  it  possible  for  her  enemies  to  fill  the 
minds  of  the  home  authorities  with  suspicion,  and  there  was 
just  enough  truth  at  the  bpttom  of  the  charges  for  them  to 
be  extremely  effective.  Other  colonies  as  well  were  on  the 
black  list  of  the  Board.  Among  intelligent  Englishmen  both 
in  and  out  of  Parliament  there  was  a  strong  feeling  that  some 
of  the  colonies  were  not  acting  consistently  with  the  inter- 
ests of  England,  and  needed  the  strong  hand  of  Parliament 
to  curb  them,  even  to  the  taking  away  of  their  treasured 
privileges.1 

But  the  blow  was  not  to  fall  yet.  Parliament  was  perhaps 
not  yet  prepared  to  intervene  in  the  management  of  colonial 
affairs,  however  general  the  opinion  seemed  to  be  that  it  had 
a  right,  in  view  of  the  events  of  1688,  to  assume  this  function 
of  the  royal  prerogative.  Although  for  thirty  years  ample 
opportunities  for  so  doing  had  been  given,  yet  the  rights  and 
privileges  of  the  charter  colonies  remained  unimpaired.  Per- 
haps the  colonies  had  given  insufficient  provocation ;  if  so, 
time  would  soon  render  the  provocation  greater,  not  because 
of  any  defiant  act  of  the  colonies  but  because  of  the  inevitable 

1  See  the  representation  of  1733  and  the  resolution  of  the  House  of 
Lords  (Talcott  Papers,  I,  p.  297),  where  strong  language  is  used. 
Wilks  reports  a  speech  made  one  day  in  the  House  of  Lords  to  the  same 
effect  (Ibid.,  I,  pp.  294-295).  The  opinion  of  intelligent  Englishmen 
can  be  inferred  from  an  extract  from  Salmon's  Modern  History  pub- 
lished in  1739.  "The  laws  [of  the  charter  governments]  are  liable  to  be 
repealed  and  their  constitution  entirely  altered  by  the  King  and  Parlia- 
ment; which,  one  would  think,  should  render  them  extremely  cautious 
in  making  laws  that  may  prove  disadvantageous  to  their  mother  country 
.  .  .  for  they  may  very  well  expect  that  when  this  shall  be  done  to  any 
great  degree  the  Parliament  will  keep  a  severe  hand  over  them  and  per- 
haps deprive  them  of  their  most  darling  privileges.  It  may  be  found 
expedient  hereafter  also  for  their  own  defence  and  security  to  appoint  a 
viceroy  or  at  least  a  Generalissimo  in  time  of  war  .  .  .  Or  at  least  it 
may  be  found  necessary  to  make  all  the  colonies  immediately  dependent 
on  the  Crown,  as  Virginia,  Carolina  and  New  York  are:  for  the  char- 
ter governments  are  not  to  be  depended  on  in  such  exigencies."  Modern 
History  by  Mr.  Salmon,  III,  p.  568  (London,  1739). 


462  ///.     THE    COLONIAL    PERIOD. 

tendency  of  their  economic  development.  The  intestacy  law 
is  but  a  straw  showing  the  direction  of  the  wind;  it  has  a 
legal  stamp  upon  it  but  it  is  in  origin  and  effect  an  economic 
measure. 

The  representation  of  1730,  followed  soon  after  by  that  of 
1733,  resulted  in  a  vehement  body  of  resolutions  of  the  House 
of  Lords,  but  no  further  effect  was  seen.  One  session  of  Par- 
liament passed  and  still  another,  but,  as  no  steps  were  taken 
pursuant  to  the  resolutions,  the  colony  began  to  breathe  more 
freely.  That  it  would  have  resisted  the  acceptance  of  an 
explanatory  charter  is  evident;  it  is  fortunate  that  it  was 
never  called  upon  to  put  the  matter  to  the  test.  While  the 
fate  of  Connecticut  was  thus  hanging  in  the  balance,  another 
case,  that  of  Phillips  vs.  Savage,  was  carried  by  appeal  from 
the  Superior  Court  of  Massachusetts  to  the  King  in  Council.1 
Here  a  decision  in  favor  of  the  intestacy  law  gave  new  cour- 
age to  Connecticut,  and  in  another  private  suit,  that  of 
Clark  vs.  Tousey,  the  matter  was  again  brought  before  the 
King  in  Council.  The  appeal  was  dismissed,  however,  by  the 
Privy  Council  in  1745  not  through  any  decision  as  to  the 
right  or  wrong  of  the  case,  but  because  of  the  fact  that  Clark 
had  not  prosecuted  the  appeal  within  a  year  and  a  day  as 
required  by  the  Council.  Connecticut  accepted  the  dismissal 
as  a  decision  in  her  favor,  although  it  was  in  fact  nothing  of 
the  kind.  It  ended  the  matter  only  because  no  one  dared  to 
make  another  appeal  and  the  question  never  came  up  again.2 

With  this  dismissal  the  colony  returned,  to  all  outward 
appearance,  to  the  position  that  it  had  occupied  seventeen 
years  before.  But  this  was  not  true  in  fact.  Seventeen 
years  of  experience  with  England's  policy,  years  of  argu- 
ment and  controversy,  had  enlarged  the  mind  and  toughened 
the  sinews  of  Connecticut?s  leaders,  and  had  formed  a  body 
of  tradition,  made  up  of  higher  reveren.ce  for  the  charter 
and  higher  regard  for  its  integrity,  to  be  handed  down  to 
the  succeeding  generation.  It  was  not  the  influence  of  any 
theory  of  the  fundamental  rights  of  man,  or  of  any  inherent 

1  For  the  case  of  Phillips  vs.  Savage  see  Mass.  Hist.  Soc.  Proc.  1860- 
1862,  pp.  64-80,  165-171. 

'The  proceedings  of  the  Privy  Council  upon  the  appeals  of  Clark 
and  Tousey  are  to  be  found  in  Conn.  CoL  Rec.  IX,  pp.  592-593. 


13.     ANDREWS:   COLONIAL   CONDITIONS   463 

hostility  to  England  that  underlay  the  attempt  of  Connecti- 
cut to  keep  her  charter  and  to  preserve  her  privileges;  it 
was  the  determination  to  maintain  at  any  cost  the  integrity 
of  the  colony  and  the  welfare,  happiness,  and  prosperity  of 
its  people.  In  the  issue  which  arose  in  1730,  as  well  as  in 
that  which  arose  in  1765,  it  will  be  found  that  economic 
causes  and  conditions  drove  the  colonists  into  opposition  to 
England  quite  as  much  as  did  theories  of  political  independ- 
ence or  of  so-called  self-evident  rights  of  man. 

We  have  now  followed  s'tep  by  step  this  important  ques- 
tion from  its  starting  point  in  the  land  system  of  New  Eng- 
land to  its  final  issue  in  the  prerogatives  of  Crown  and  Par- 
liament. The  land  system,  representing  the  pre-feudal  idea 
rather  than  the  feudal,  was  reproduced  in  America  with  some 
important  changes.  Out  of  this  sprang  the  law  of  intestacy, 
differing  in  principle  from  that  of  England  which  rested 
upon  feudal  law.  This  difference  between  the  common  law 
of  the  two  countries  was  taken  advantage  of  by  certain  dis- 
affected ones  of  Connecticut  who  sought  to  benefit  themselves 
by  appealing  to  England  against  the  colonial  law.  This 
matter,  at  first  private,  touching  the  lands  and  interests  of 
but  a  few  persons,  became  of  wider  importance  by  the  vaca- 
tion of  the  law  by  the  King  in  Council.  By  this  the  agrarian 
harmony  of  Connecticut,  and  possibly  of  New  England,  was 
threatened.  This  roused  the  colony,  and  the  issue  became  a 
part  of  the  larger  question  of  the  relations  of  the  proprietary 
and  charter  colonies  to  the  Crown.  This  made  the  matter  of 
importance  not  merely  to  Connecticut  and  New  England,  but 
to  the  other  colonies  of  this  class  as  well.  But  the  influence 
of  the  Winthrop  case  did  not  stop  here;  it  passed  even 
higher,  and  raised  the  question  of  fundamental  importance  to 
all  the  colonies  as  to  the  constitutional  relations  of  Crown 
and  Parliament.  The  settlement  of  this  question  foreshad- 
owed the  action  which  Parliament  was  to  take  forty  years 
after. 


PART    IV. 

EXPANSION  AND  REFORM  OF  THE  LAW  IN  THE 
NINETEENTH    CENTURY 

14.  Anticipations  under  the  Commonwealth  of  Changes  in 

the  Law. 

R.  ROBINSON. 

15.  Bentham's  Influence  in  the  Reforms  of  the  Nineteenth 

Century. 

JOHN  FORREST  DILLON. 

16.  Progress  in  the  Administration  of  Justice  during  the 

Victorian  Period. 

CHARLES  SYNGE  CHRISTOPHER,  BARON  BOWEN. 

17.  The  Development  of  Jurisprudence  during  the  Nine- 

teenth Century. 

JOSEPH  HENRY  BEALE,  Ja. 

18.  The  Extension  of  Roman  and  English  Law  throughout 

the  World. 

JAMES  BRYCE. 


465 


[OTHER  REFERENCES  ON  THIS  PERIOD: 

In  Select  Essays: 

The  History  of  Code  Pleading  in  America  and  England,  by  C.  M. 
Hepburn:  Volume  II. 

Changes  in  the  English  Law  of  Real  Property  during  the  Nineteenth 
Century,  bv  A.  Underbill:  Volume  III. 

In  other  Treatises  and  Periodicals: 

A  Century  of  Law  Reform,  by  various  authors  (1901);  chapters  on 
Equity,  Corporations,  etc. 

Two  Centuries'  Growth  of  American  Law,  by  various  authors  (Yale 
Studies,  1901 ) ;  chapters  on  Equity,  Corporations,  Property,  Evidence, 
etc. 

Treatise  on  Statutes,  by  F.  Dwarris  (1848)  ;  a  list  of  reformatory 
statutes  from  Charles  II  to  Geo.  Ill,  pp.  835-868. 

The  History  of  Legislation  concerning  Property  in  England,  by  J.  F. 
de  Villiers  (1901). 

Law  Reform  in  the  United  States  and  its  Influence  Abroad,  by  D.  D. 
Field,  American  Law  Review,  August,  1891.] 


466 


14.     ANTICIPATIONS    UNDER    THE    COMMON- 
WEALTH OF  CHANGES  IN  THE  LAW1 

BY  R.  ROBINSON  2 

IS  essay  touches  on  some  of  the  alterations  made  or 
JL  suggested  by  the  statesmen  and  jurists  of  the  Republic 
in  our  judicature  and  in  our  criminal  and  civil  law.  It  avoids 
social,  constitutional,  and  political  questions  —  political,  like 
the  union  of  Great  Britain,  though  that  involved  an  union 
of  laws ; 3  constitutional,  like  the  abolition  and  reconstruc- 
tion of  the  Upper  House  of  Parliament ; 4  social,  like  the 
establishment  of  public  works  for  the  poor,5  and  of  a  public 
post-office.6 

The  goodness  of  the  laws  of  Charles  II.,  contrasted  with 
the  badness  of  his  government,  has  drawn  a  compliment  from 
Blackstone,  epigrams  from  Burke  and  Fox,  and  a  paradox 
from  Buckle.  An  enquiry  into  the  source  of  these  laws  may 
show  that  the  paradox  is  unreal,  the  epigrams  unfounded, 
the  compliment  due  to  the  Republicans ;  that  they,  in 

irThis  essay  is  taken  from  volume  III,  pp.  567-601,  of  "Papers  read 
before  the  Juridical  Society"  (London:  Wildy  and  Sons).  It  is  without 
date,  but  was  read  in  1869  or  1870. 

2  Barrister-at-law,  Fellow  of  Owen's  College,  Oxford. 

With  the  above  Essay  may  be  compared  the  following:  The  Consti- 
tutional Experiments  of  the  Commonwealth,  by  Edward  Jenks  (1890; 
Cambridge,  University  Press)  ;  The  Interregnum,  by  F.  A.  Inderwick. 

"St.  1654,  cc.  8,  9,  10:  Whitelock,  517,  532,  632:  "The  decisions  of 
the  Engl.  judges  during  the  ursurpation,"  etc.  Cp.  Bacon,  "  Certayne 
articles  touching  the  Union  ...  of  Engl.  and  Scotl."  [M.  s.  Qu.  Coll. 
Oxf.  32.27  (D.  2.  129,  [194])]. 

4Stt.  1648-9,  c.  17;  1656-7,  cc.  6,  18;  1659,  July  12:  Comm.  Journ.: 
Whitelock,  377,  569,  foil.:  6  Thurloe,  107,  668:  Ludlow  (246). 

BJ.  Coke,  " Unum  necessarium .•"  Stt.  1649,  May  7:  1653-4,  c.  20: 
Whitelock,  384,  531.  Cp.  St.  43  Eliz.  c.  2:  Child,  "Proposals  for  the 
relief  and  employment  of  the  poor"  [11  Somers's  Tracts,  606]. 

•Comm.  Journ.  1649,  Mar.  21;  1657,  June  9:  Stt.  1654,  c.  51;  1656, 
C.  30. 

467 


468        IV.     THE    NINETEENTH    CENTURY 

redressing  grievances  which  from  the  time  of  James  and 
Bacon 1  had  been  fostering  rebellion,  forestalled  the  law- 
reformers,  not  of  the  Restoration  only,  but  of  our  own  age. 

The  legislators  of  1641  had  struck  blindly  at  all  courts 
which  seemed  to  them  arbitrary  or  peculiar;  they  had  not 
asked  how  far  these  were  due  to  the  faults  of  the  Common 
Law,  to  the  wants  of  society,  to  the  difficulty  of  travelling. 
That  year  had  seen  the  Privy  Council,  the  Stannary  Court, 
the  Forest  Court,  nominally  regulated,  but,  in  fact,  para- 
lyzed, the  Court  of  Chivalry  abolished  by  resolution,  the 
Courts  of  Star  Chamber,  of  Requests  and  of  High  Com- 
mission, and  the  right  of  temporal  jurisdiction,  which  was 
among  the  "  royal  rights  "  of  the  Bishops  of  Durham  and 
of  Ely,  taken  away  by  statutes.  With  the  Star  Chamber 
the  Palatine  courts,  as  far  as  they  were  its  antitypes,  and 
the  Courts  of  the  Councils  of  Wales  and  of  the  North  fell 
to  the  ground.  Nay,  it  was  forbidden  to  erect  such  tribu- 
nals.2 But  the  necessity  for  them  was  overwhelming:  di- 
versity of  usage,  caused  by  difference  of  circumstances,  made 
it  possible  to  pass  a  bill  for  the  uniformity  of  law. 

Take,  for  instance,  the  series  of  High  Courts  of  Justice 
constituted  to  try  the  King,  the  democrat  Lilburn,  the  Roy- 
alists Hamilton,  Holland,  Norwich,  Capel  and  Owen,  con- 
stituted again  or  continued  in  1650,  again  in  1651,  again  in 
1652,  again  in  1653,  again  for  the  trial  of  Gerard  and  Vowel 
in  1654,  again  in  1656.  Besides  these,  the  jurisdiction  of 
which  was  national,  there  was  one  erected  in  1650  for  Nor- 
folk and  Norwich,  Suffolk,  Huntingdonshire,  Cambridge- 
shire, Lincolnshire  and  the  Isle  of  Ely.  They  were  consti- 
tuted sometimes  by  Parliament,  sometimes,  seemingly,  by  the 
Executive.  They  were  not  meant  to  be  perpetual ;  but  they 
were  meant  to  reach  by  Equity  crimes  and  criminals  which 
Common  and  Statute  Law  and  public  opinion  would  not  have 
reached.  Clarendon  calls  them  "  a  new  form."  Rather 
they  were  suggested  by  the  Star  Chamber,  in  favour  of  which 

*J.  Coke,  "The  vindication  of  the  profession  and  professors  of  the 
Law,"  A  4:  Bacon,  "Works"  [e.  g.  vol.  10,  ed.  Spedding:  essay  "of 
Judicature:"  " De  Augm.  Sc.:"  "Henry  VII."] 

'St.  16  and  17  Car.  i.  cc.  10,  11,  15,  16,  28:  Comm.  Journ.:  Clar. 
bks.  3  and  4. 


U.     ROBINSON:   ANTICIPATIONS  469 

the  Privy  Council  and  the  Chancery  had  parted  with  their 
criminal  jurisdiction,  which  dexterously  construed  intentions 
into  acts,  which  (like  the  High  Courts  of  Justice,  as  Claren- 
don taunts  them)  did  away  with  "  distinction  of  quality  " 
in  capital  cases,  and  made  "  the  greatest  lord  and  the  mean- 
est peasant  undergo  the  same  judicatory  and  form  of  trial,"  * 
equalizing  them  in  the  dock  as,  during  the  French  Revolu- 
tion, the  guillotine  equalized  them  on  the  scaffold.  Claren- 
don's sneer,  repeated  in  earnest  in  St.  1656,  c.  3,  that  these 
tribunals  were  "  for  the  better  establishment  of  Cromwell's 
empire,"  2  in  other  words,  for  the  maintenance  of  order,  is 
their  apology. 

Changes  more  or  less  sweeping  in  the  Superior  Courts  of 
Common  Law  and  in  the  Law  Terms  were  proposed.  The 
latter  were  regarded  by  the  people  as  of  Norman,  indeed, 
of  the  Conqueror's  institution,  and  wasted  time  and  money. 
Nor  need  we  have  wondered  if,  as  the  early  Christians,  abhor- 
ring Pagan  festivals,  administered  justice  daily,  so  the  Puri- 
tans, abhorring  Catholic  festivals,  had  effaced  the  distinction 
between  term-time  and  vacation.  However,  Michaelmas  Term 
having  been  shortened  so  as  to  suit  the  farmers,  no  more  was 
done.3  The  alterations  made  in  the  Superior  Courts  embar- 
rassed Chief  Justice  Foster  after  the  Restoration,  but,  such 
was  the  strength  of  the  Common-lawyers,  did  not  satisfy  the 
reformers.4  Stt.  1649,  c.  10,  and  165%,  c.  4,  only  accom- 
modated their  forms  to  those  of  the  new  constitution.  Fines 

'Stt.  1648-9,  cc.  6,  10:  1650,  c.  1,  Apr.  2,  cc.  24,  40;  1651,  cc.  8,  20; 
1653,  c.  25;  1653-4,  c.  4;  1654,  c.  27;  1656,  c.  3  ;  Comm.  Journ.: 
"State  Trials:"  Cock,  "English  Law"  (1651),  p.  74:  Whiteloek:  Clar. 
bks.  11,  13,  14:  Spence,  pt.  2,  bk.  1,  c.  4,  and  bk.  4,  c.  1.  For  the  refer- 
ence to  Spence  I  have  to  thank  Sir  G.  Young. 

2 "  Divers  officers  and  soldiers "  call  Cromwell  "  the  first  Christian 
King  and  Emperour"  ["A  supply  to  a  draught  of  an  act,"  etc.  (1653), 
p.  22].  Cp.  "The  Homilies"  (1547),  bk.  1,  serm.  10,  pt.  3.  I  am  in- 
debted to  the  Rev.  J.  R.  Green  for  reminding  me  that  Archbp.  Heath, 
in  1559,  spoke  of  Elizabeth  as  "  our  Emperour  and  Empress"  [Free- 
man, 1  "Norman  Conquest"  161,  626]. 

8  Selden,  "Janus  Angl."  bk.  2,  §  9:  Warr,  "The  corruption  and  de- 
ficiency of  the  laws  of  Engl."  etc.,  cc.  3  and  4:  Winstanly,  Barker,  and 
Star,  "An  Appeal  to  the  H.  of  C.  etc.,  pp.  18,  19:  Jones,  "The  new 
relurna  brevium"  etc.,  passim:  Thierry,  "The  Conquest  of  Engl."  etc., 
conclusion,  §4:  Spelman,  "Of  the  Terms:"  St.  16  Car.  i.,  c.  6. 

*  "  Exam  en  legum  Angl."  (1656):  Cole,  "A  rod  for  the  lawyers" 
(1659).  But  see  "A  vindication  of  the  laws  of  Engl.  as  they  are  now 
established." 


470        IV.     THE    NINETEENTH   CENTURY 

on  declarations  were  taken  away  with  those  on  bills  and  on 
original  writs ;  but  fines  on  writs  of  covenant  and  of  entry 
were  left.1  The  conflicts  of  jurisdiction  carried  on  not  only 
between  the  Common  Law  Courts  and  the  Chancery  and  the 
Admiralty  and  the  Ecclesiastical  Courts,  but  also  among 
the  Courts  of  Common  Law  themselves,  carried  on  by  means 
of  fictions  and  prohibitions  and  injunctions,  and  causing  great 
expense,  were  a  scandalous  evil. 2  The  Committee  of  Law 
Reform  (1653)  dealt  with  this  grievance.3  It  would  have 
confined  all  tribunals  within  certain  bounds,  have  kept  all 
actions  between  subjects  under  that  "  lock  and  key  of  the 
Common  Law  "  —  the  Court  of  Common  Pleas,  have  allowed 
barristers  as  well  as  Serjeants  to  plead  before  that  bench, 
and  every  attorney  to  practise  in  any  court,  and  have  paid 
the  judges  by  salary  and  not  by  fees.  Now,  it  was  covet- 
ousness  father  than  desire  to  amplify  jurisdiction,  rather 
even  than  ambition,  which  led  to  those  costly  conflicts;  and 
therefore  such  measures,  combined  with  others  against  judi- 
cial corruption,  would  have  abated  nuisance.  But  they  could 
not  be  carried.  A  century  later  Willes,  C.  J.  C.  P.,  proposed 
that  Parliament  should  open  his  court  to  barristers ;  he  was 
met  by  the  plea  that  there  should  be  there  (as  there  now  is 
to  some  extent  in  the  courts  of  first  instance  in  Equity)  a 
resident  bar.  In  1834  another  attempt  was  made:  in  1840, 
amid  a  furious  tempest  of  wind  (as  Bingham,  the  reporter, 
notes),  it  was  repelled.  In  1847  the  plan  of  1653  was  accom- 
plished/4 

Between  the  Equity  and  the  Common  Law  Bar  there  was 
a  quarrel  of  old  standing ;  and  now  that  the  latter,  the  soul 
of  the  Rebellion,  was  in  the  ascendant,  the  Chancery  seemed 

1  6  Somers's  Tracts,  179:  St.  1653,  c.  4:  Resolution,  Nov.  7:  Stt. 
1654,  c.  53;  1656,  c.  10. 

*  North,   "Guilford"    (1742),  p.   99.      See    Mr.    Commissioner   Hill's 
"Letter    to    Thomas     Pemberton,"    etc.     (1838),    pp.    27-38:     Bacon, 
"Works,"  vol.  10,  p.  367  (ed.  Spedding) :  12  Rep.  109:  4  Inst.  99:  Jones, 
«.  *.;    and  other  works,  passim. 

8  See  its  draughts  in  6  Somers's  Tracts,  211  foil,  ridiculed  in  "The 
proposals  of  the  Committee  for  regulating  the  law,"  etc.  [ibid.  528-32], 
and  sensibly  criticized  by  the  army  in  "  A  supply  to  a  draught  of  an 
act,"  etc.  (1653). 

*  Wynne,  "Serjeant  at  Law:"    Manning,  " Serviens  ad  Legem:"    10 
Bing.  571:  1  and  6  Bing.  n.  c.:  St.  9  &  10  Viet.  c.  54:  3  C.  B.  537. 


U.     ROBINSON:   ANTICIPATIONS  471 

marked  for  destruction.  Bishops  had  presided  over  it,  kings 
had  favoured  it,  its  jurisdiction  had  been  extended  (sub- 
stantially, as  time  shewed,  in  compliance  with  the  wants  and 
spirit  of  the  age),  but  illicitly,  irregularly,  and  tyrannically. 
An  injured  public  declared  that  it  swarmed  with  "  a  number- 
less armado  of  caterpillars "  and  "  Egyptian  grasshop- 
pers ;  "  and  in  1653  an  act,  which  never  operated,  passed  for 
its  abolition.1  Meanwhile,  it  had  been  reforming  itself.  In 
1649  the  Commissioners  of  the  Seals,  Whitelock,  Keble,  and 
1'Isle,  assisted  by  Lenthal,  M.  R.,  in  provisional  orders,  for- 
bade prolix,  scandalous,  and  ambiguous  pleadings  and  set 
bounds  to  multiplicity  of  suits,  to  suits  in  forma  pauperis 
and  to  the  granting  of  injunctions:  these  were  granted 
often  for  the  sake  of  the  fees,  and  dissolved  by  connivance 
with  the  Common  Law  judges,  that  they,  when  they  went 
circuit,  might  not  have  nothing  to  do.2  Many  other  attempts 
were  made  by  the  Commissioners  and  by  the  Commons  to 
improve  the  court.  But  the  "  cases  "  of  the  latter  were 
"  far  more  precious  than  their  carcases,"  and  little  was 
done  till  the  Committee  of  1653  suggested  the  best  part  of 
Cromwell's  famous  ordinance.3  That  passed  on  the  22nd  of 
August,  1654.  It  was  bitterly  attacked  by  the  bar,4  and  not 
unjustly;  for  it  aimed  with  more  earnestness  than  skill  at 
rapidity,  simplicity,  and  cheapness.  Its  prevailing  tendency 
and  that  of  the  orders  of  1649  and  of  public  opinion  was  to 
deprive  Equity  of  what  she  had  taken  from  Law,  and  to  pro- 
tect obligors  and  mortgagees.  Plaintiffs  were  to  give  secur- 
ity for  costs ;  as  many  admissions  as  possible  were  to  be  made 
by  each  party ;  each  was  to  suffer  for  causing  unnecessary 
expense;  witnesses  were  to  be  properly  examinee!,  but  not, 
it  seems,  in  court.  On  the  other  hand,  no  case  was  to  be 
heard  for  more  than  one  day.  The  schedule  again,  besides 

1  Jones,  "  The  new  returna  brevhim,"  etc.  Hudson,  25  "  Archaeol  " 
349,  foil. :  J.  Coke,  "  A  vindication,"  etc.  "  An  exact  relation  of  the 
proceedings  and  transactions  of  the  Parliament  which  began  July  4, 
1653,  by  a  member  thereof." 

*  Orders  in  Beames:    Jones,  "Judges  judged,"  etc.,  p.  92. 

*  Whitelock,  519,  548:   Jones,  "The  new  ret.  brev."  etc.     A  6:   6  Som- 
ers's  Tract,  202,  foil. 

4  Stt.  1654,  c.  44;  1656,  c.  10:  Whitelock,  621-7.  Cp.  4  Comm.  Journ. 
701. 


472        IV.     THE    NINETEENTH    CENTURY 

attacking  the  length  of  legal  documents  ("  the  round- about, 
Robin-Hood  circumstances,  with  *  saids  '  and  '  aforesaids,' ': 
the  "  huge  gaps,  wide  as  meridians  in  maps,"  the  reckoning 
fifteen  or  eighteen  lines  to  a  folio)  as  an  absolute  evil,  at- 
tacked it  also  as  profitable  to  the  lawyers ;  the  answer,  that 
lawyers  must  be  properly  paid,  indirectly  if  not  directly, 
was  old  as  Bacon. l  On  the  whole,  though  some  of  the  reforms 
were  tacitly  adopted  by  Clarendon,  they  were  not  enough; 
and  the  best  thing  which  the  Commonwealth  did  for  Equity 
was,  not  to  fuse  it  with  —  I  find  no  notion  of  fusing,  but  to 
reduce  it  to,  Common  Law.  That  it  did  by  placing  on  the 
Equity  Bench  Common-lawyers  whose  political  career  had 
made  them  acquainted  with  the  defects  of  their  own  school, 
and  whose  antecedents  had  disposed  them  to  find  in  Equity 
one  of  the  grounds  of  Common  Law,  to  study  it  as  a  science, 
and  administer  it  regularly.2  That  view,  so  rational,  so- 
true  to  history,  reconciling  Coke  and  Selden  with  Bacon, 
Ellesmere  and  Hobbes,  inherited  from  Hale  by  Nottingham, 
has  descended  through  Camden  and  Eldon,  and,  if  now  out  of 
date,  was  suited  to  England  in  the  seventeenth  century. 
England  needed  Equity,  and  yet  that  Equity  should  cease 
to  be  "  mysterious,"  and  "  the  measure  of  the  Chancellor's 
foot."  3 

A  series  of  statutes  professed  to  take  away  all  "  ordinary- 
jurisdiction,"  4  and,  no  doubt,  from  spiritual  persons,  took 
it  and  every  privilege  away.  The  Courts  Christian  had 
long  been  doomed.  They  remind  those  whose  hatred  of 
the  episcopate  had  led  them  to  fix  on  spotted  dogs  the 
name  of  "  bishop  "  that  prelacy  had  been  in  the  ascendant :  6 

1  Carey,  "  The  present  state  of  England  "  (1627)  :  "  Saint  Hilary's 
tears"  (1642  or  1643):  2  "  Hudibras "  3,  325-30,  and  Grey's  n.:  Bacon, 
"Arguments  against  the  Bill  of  Sheets"  ["Works,"  vol.  10,  p.  287  (ed. 
Spedding),  cp.  vol.  8,  p.  226]:  Williams,  "Real  Property,"  pt.  1,  c.  9. 

'"A  noble  person,"  in  Burnet's  "Hale,"  pp.  113  foil.   (1682). 

8Cp.  Selden,  "Table  Talk"  and  Whitelock,  378,  with  Hooker  [5E. 
P.  9]  and  Hobbes,  "  A  dialogue  between  a  philosopher  and  a  student  of 
the  Common  Laws  of  Engl."  And  see  Smith,  1  Ex.  Dev.  534  n.  t. 
(1844);  2  Swanston,  414;  3  De  G.  F.  and  J.  238;  Best,  1  Jur.  Soc. 
Pap.  399,  foil. ;  Marshall,  i&.,  2,  283,  foil. 

«Stt  16  Car.  i.  c.  11;  17  Car.  i.  c.  28  (repealed  by  13  Car.  ii.  c.  2); 
1646,  cc.  64,  66;  1649,  c.  24:  Clar.  bks.  3,  4. 

•1  "Hudibras"  2,  531;   3,  2,  544;    and  Grey's.notes. 


14-     ROBINSON:   ANTICIPATIONS  473 

they  reminded  the  many  of  penance  done  with  paper  lantern 
and  in  white  sheet  for  heresies  and  vices;11  of  comfort  given 
to  tyranny  and  to  popery:  the  law  which  they  administered 
was  not  English,  and  though  intrinsically  less  obscure,  was 
less  easily  understood  by  the  people  than  Common  Law :  their 
judges  had  been  corrupt2  and  the  civilians  who  pleaded  in 
them  unpopular:3  lastly,  the  time  favoured,  and  the  con- 
stitution of  those  tribunals  justified,  and  alteration.  Yet 
ordinary  jurisdiction  was  transferred  only,  and  not  entirely 
taken  away :  partly  it  was  necessary,  and  partly  it  was  suited 
to  the  age.  The  business  of  the  Clerical  Courts,  administra- 
tive and  litigious,  had  still  to  be  done;  acts  regarded  in  law 
as  crimes  did  not  cease  in  public  opinion  to  be  criminal ;  tithe 
was  exacted  still;  property  left  by  testators  and  intestates 
had  still  to  be  disposed  of;  clerks  had  still  to  be  instituted 
and  inducted:  these  duties  were  transferred  by  degrees  to 
lay  hands.  4 

On  the  civil  side  of  the  Spiritual  Courts  analogous  changes 
were  made,  such  as  Bacon  might  have  recommended,5  such  as 
have  nearly  all  been  since  carried  out.  All  questions  about 
tithes  —  "  Norman  "  though  they  were  —  were  tried  at 
Common  Law.6  As  to  probate  and  administration:  Bacon 
and  Selden  had  argued  that,  by  the  Civil  and  the  Canon 
and  the  English  Law,  the  profane  hand  has  a  better  right 
than  the  sacred  to  grant  probate,  to  distribute  legacies,  to 
administer  the  property  of  intestates ;  7  Brown  v.  Wentworth 

1  76,  2,  1,  870:  Proceedings  in  the  Bp.'s  and  Archdn.'s  Cts.,  Oxf. 
*13  Rep.  24:  12  Rep.  78  and  3  1st.  147:  4  Inst.  336;  cp.,  as  to  Sir 
John  Bennet,  Willet,  "Synopsis  Papismi"  (Charitable  work  done  in  the 
U.  of  O.)  and  Macray,  "Annals  of  the  Bodl.,"  p.  37. 

8  Froude,  c.  24:  Hallam,  cc.  2,  4,  8:  Steph.,  "  Comm."  intr.  §1:  Clar. 
«.  *.,  Burton,  "Dairy,"  4  Nov.  1654:  Whitelock,  655:  "Merc.  Pol.," 
No.  238. 

4  Stt.  1643,  May  17  and  20,  c.  10;  1644  Nov.  5.  Cp.  the  permission 
given  by  St.  1  Eliz.  c.  1,  §§  39-43  to  proceed  with  appeals  to  the  Court 
of  Rome  in  the  cases  of  Tyrril  v.  Chetwood  and  Wife  and  Harcourt  v. 
Tydell 

6  See  his  "  Certain  considerations  touching  the  better  pacifications 
and  edification  of  the  Church  of  England." 

6  Statt.  1644,  c.  45,  1647,  March  24,  c.  85;  1648,  cc.  110,  121,  1649,  cc. 
24,  31;  1650,  c.  5;  1654,  c.  45;  1656,  c.  10:  Harwood  v.  Paty,  Hardres, 
63:  Jones,  "The  crie  of  bloud,"  p.  16;  "A  case  concerning  tythes;" 
Winstanly,  etc.  u.s.  pp.  18,  19:  W[m.]  S[hepherd],  "The  Parson's 
Guide"  (1654),  c.  8. 

T  Bacon  u.  s.:  Selden,  "  Eccl.  Jurisdiction  of  testaments."   (c.  1626). 


474         IV.     THE   NINETEENTH   CENTURY 

and  Hensloe's  Case  were  recent  authorities  in  their  favour,1 
and  another  was  the  practice  of  civilized  Europe,  —  France, 
and  especially  Brittany,  excepted. 2  In  1653,  accordingly,  a 
temporal  tribunal  was  erected  and  endued  with  the  powers 
of  the  Consistory  and  Prerogative  Courts:  it  consisted  of 
twenty  judges,  five  of  whom  were  a  quorum;  among  them 
were  Cooper,  afterwards  Lord  Shaftesbury,  Hale,  Des- 
borough,  Cock,  Peters,  and  Rushworth.  The  measure  was 
crowned  by  the  establishment  of  district  registries  for  all 
wills  and  for  letters  of  administration.3  Legacies  were  to 
be  sued  for  at  Common  Law.4  St.  165-p,  C.  43,  appointed 
delegates  to  try  the  validity  of  questionable  marriages.  °  The 
effect  of  all  this  was  to  replace  Ecclesiastical  by  Common 
Law,  not  simply  to  bound  the  jurisdiction  of  the  former 
by  the  latter.6  "  I  would  not  have  law  bookes  to  be  dealt 
withall  like  the  Common  Prayer  Booke,  which  as  (sic)  hap- 
pily laine  aside  like  an  old  caske  for  its  ill  savour,"  says  John 
Coke,  solicitor-general  at  Charles's  trial,  and  afterwards 
Chief  Justice  of  Munster,  "  but  refined,  purged,  and  con- 
formed to  Right  Reason,  speedy  justice,  and  consconable 
(sic)  Equity.  Let  his  expurgation  be,  at  the  first  dash,  of  all 
matters  ecclesiastical  and  bishops'  appurtenances,  for  what 
feare  is  there  to  expel  that  brats  (sic)  having  banisht  the 
father?"7 

A  mercantile  country  found  our  marine  courts  necessary, 
but  in  need  of  reform.  Their  judges  were  deputies,  often 
without  experience8  and  often  inclined  by  covetousness  or 

1Yelverton,  92:  9  Rep.  37.  Cp.  5  Rep.  i,  xvi.,  xvij.,  74:  9  Rep.  48. 

1  Selden,  1.  c.  pt.  1,  c.  6. 

»"An  experimental  essay,"  etc.  p.  3:  Statt.  1653,  c.  2,  Dec.  24;  1654, 
c.  4:  Burton,  "Diary,"  1656,  Dec.  3  and  24:  Wynne,  Jenkins,  2,  695. 

4  St.  1654,  c.  44,  §48:  "Exam.  legg.  Angl,"  c.  14,  §§31,  33,  34:  Rep. 
on  Eccl.  Cts.  (1832),  P.  39. 

•"Exam.  legg.  Angl,"  c.  14,  §27;  p. ».  §69:  3  "  Hudibras,"  1,  623- 
30.  The  attacks  made  in  "A  plea  for  ladies,"  etc.  on  Milton's  book 
about  divorce,  which  he  defended  by  translating  Bucer's,  and  by  writing 
"  Colasterion "  and  "  Tetrachordon,"  prevented  thorough  legislation. 

6  Wingate,  "  Maxims  of  Reason,"  1,  4. 
"The  Vindication,"  etc.,  p.  83. 

*  As  Lewes,  Principal  first  of  New  Inn  Hall,  and  then  of  Jesus  Coll. 
Oxf.,  appointed  by  Lord  Clinton,  in  1558,  Judge  of  the  High  Ct.,  of  Ad- 
miralty [Ms.  among  the  records  of  the  court:  Wood,  1  "Fasti  Oxon." 
127]. 


U.     ROBINSON:.  ANTICIPATIONS  475 

by  ambition  to  stretch  their  powers.  During  twenty  years 
the  Republicans  settled  and  restrained  their  civil  jurisdiction 
by  statutes : 1  and,  when  these  were  set  aside  at  the  Restora- 
tion a  bill  embodying  them  was  brought  into  Parliament  and 
supported  by  Sir  Leoline  Jenkins.2  St.  1649,  c.  61,  vested 
in  the  Common  Law  Courts  (and  presumably  took  from 
others)  jurisdiction  over  crimes  committed  on  or  beyond  the 
seas:  St.  1650,  c.  7,  however,  explained  that  the  Court  of 
Admiralty  had  such  jurisdiction  still.  Letters  of  marque 
were  granted  though  under  restrictions.3  Stress  of  war 
and  ignorance  of  Political  Economy  made  the  Common- 
wealth pass  Acts  of  Navigation  and  maintain  the  pressgang.4 
But  impressment  was  balanced  by  high  wages,  short  peri- 
ods of  service,  provision  made  for  disabled  seamen  and  for 
seamen's  families.  Stt.  1650,  c.  28,  and  1651,  c.  22,  per- 
petuated with  aggravations  in  1661  and  1663,  approved  by 
Blackstone,  approved  by  even  Adam  Smith  and  Brougham,5 
were  not  repealed  till  1854. 

District  courts  to  try  small  causes  were  in  demand:  not 
only  such  as  have  been  erected  since  1846,  but  more  like  those 
which  Smith,  J.,  and  the  Solicitor-General  have  lately 
recommended.6  The  sheriff's  county  court,  the  hundred 
court,  the  freeholder's  court  baron,  had  become  inadequate, 
and  were  too  often  obliged,  by  writs  of  pone  accedas, 
recordari  and  false  judgment,  to  send  cases  up  to  the 
Superior  Courts,  there  to  be  slowly  and  expensively  decided. 
In  Bacon's  time  the  subjects  of  England  did  already  fetch 
justice  somewhat  far  off,  more  than  in  any  other  nation  that 
he  knew,  the  largeness  of  the  kingdom  considered ;  nor  did  the 
circuits  nor  the  Courts  of  the  Councils  of  Wales  and  of  the 
North,  which  he  compared  to  the  French  Parliaments,  and  to 

'See  among  other  Stt.  1648,  c.  112;  1648-9,  cc.  13,  14;  1640,  cc.  21, 
22,  23,  38;  1650,  cc.  7,  33,  48,  50;  1651,  cc.  3,  4;  1654,  cc.  21;  1656,  c.  10. 

1  Williams  and  Bruce,  "  Admiralty  Jurisdiction  and  Practice,"  intr. 
pp.  13,  14:  Browne,  "Civil  Law,"  vol.  2,  c.  1. 

'Start.  1649,  cc.  21,  38;    1650,  e.  7. 

4  Stt.  16  Car.  i.  c.  5;  IT  Car.  i.  cc.  30,  32;  164T,  cc.  78,  101;  1648-9, 
cc.  18,  15;  1649,  cc.  21,  73;  1650,  c.  7;  1651,  cc.  21,  29;  1652,  cc.  15,  36; 
1653,  ord.  21;  1654,  c.  13;  1656,  c.  24. 

»Bla.  1  "Comm."  418:  Adam  Smith,  "  W.  of  N."  bk.  4,  c.  2,  and  Mc- 
Culloch's  12th  n.:  Campbell,  "Brougham,"  c.  8. 

•1st.  Rep.  of  the  Judicature  Commission  (1869),  note. 


476        IV.     THE   NINETEENTH   CENTURY 

which  he  would  have  added  a  Border  Court  at  Carlisle  or 
Berwick,  meet  the  want.1     The  inconveniences  flowing  from 
that  practical  denial,  of  justice  to  those  rustics  who  had 
sustained  slight  injuries  or  had  little  debts  outstanding  con- 
spired with  fashion  to  centralize  England  in  London.     The 
determination  of  wealth  and  ability  to  the  capital  had  been 
resisted   by   Tudors,   Stuarts   and  Republicans   with   futile 
measures  against  building  and  absentees.2     But  the  Repub- 
licans were  for  resisting  it  also  by  improving  the  judicial 
and  administrative  system  of  the  country.     Carey  in  1627 
had  turned  to  Spain,  then  in  many  respects  another  and  a 
better  England,3  and  asked  for  district  courts  with  a  sum- 
mary jurisdiction  such  as  he  saw  there.4  The  first  steps  taken 
by  the  Long  Parliament  were  even  in  an  opposite  direction : 
it  abolished  all  courts   of  the   kind,   and,  no  doubt,   their 
scope,  like  that  of  the  Stannary  Court  according  to  Claren- 
don, "  had  been  extended  with  great  passion  and  fury."    But 
in   1645   complaint  was  made   of  the  tedious  journeys  to 
Westminster:  in  1648  Carey's  request  was  renewed  and  a 
proposal  made  that  all  Superior  Courts  but  that  of  Parlia- 
ment should  be  swept  away ;  and  many  a  pamphleteer  j  oined 
in  the  chorus :  —  "  Let  the  people  have  right  at  their  own 
doors."6     In  answer,  the  Palatine  and  the  Duchy  Court  of 
Lancaster   were   revived   by    statute   under    Bradshaw    and 
others,   courts   of   conscience   were   established   and   county 
judicatures  planned  for  England,  courts  baron  were  erected 
in  Scotland  and  manorial  courts  6  in  Ireland. 

*  Bacon,  "  Certayne  articles  touching  the  Union  of  Engl.  and  Scotl.," 
u.  s. 

2  St.  1656,  c.  24.  Cp.  d'Israeli,  "Cur.  of  Lit."  ("Building  in  the 
Metropolis,"  etc.,  and  "Royal  Proclamations"):  Hallam,  C.  8:  Evelyn, 
" Fumifugium:"  "The  Apology  for  the  Builder"  (1685). 

•Robertson,  "Charles  V.,"  notes:  Allen,  "The  Royal  Prerogative  in 
Engl.,"  pp.  100  foil.:  Stubbe,  "a  select  senate"  (1659). 

*  Carey,  "The  present  state  of  Engl.:"  Jones,  "Every  man's  case," 
p.  17. 

5 Jones,  "Eight  observable  points  of  law:"  "An  experimental  essay, 
touching  the  reformation  of  the  laws  of  Engl.:"  Warr,  "The  corrup- 
tion and  deficiency  of  the  laws  of  Engl.,"  cc.  3,  4:  Jones,  "Judges 
judged,"  etc.;  "the  new  returna  brevium:"  "Exam.  Legg.  Angl."  c. 
13:  Lechford,  "  Plaine  dealing,"  p.  25. 

'  These  manors  were  created  under  the  conftscatory  statt.  of  Eliz., 
under  "The  Adventurers  Act."  (IT  Car.  i.  c.  34),  and  under  St.  1656, 
c.  23.  Cp.  St.  37  Hen.  viij.  c.  9;  and  see  Kingston's  case  (1  Ridg.  384, 


14-     ROBINSON:   ANTICIPATIONS  477 

I  pass  from  the  courts  to  the  attorneys,  barristers,  and 
judges.  The  first,  not  long  distinguished  from  the  second, 
had  multiplied  with  the  increase  of  business,  and,  on  the 
abolition  of  arbitrary  courts  in  1641,  those  of  them  who  had 
practised  in  these,  and  were  called  solicitors,  flooded  the 
Court  of  Chancery.  There,  though  much  of  the  work  done 
by  their  modern  representatives  was  then  done  by  clerks  of 
the  court  acting  as  the  suitors'  agents,  they  were  very  useful 
and  very  unpopular.  The  Commissioners  of  the  Seals  and 
Cromwell  regulated  both  them  and  the  clerks.1  They  tried 
also  to  regulate  counsel's  fees,2  but  (because  these  had  risen 
naturally)  without  success.  They  did  not  perceive  how  much 
the  Common-lawyers  had  strengthened  their  position  by  their 
action  in  the  Rebellion.  It  was  recommended  in  1645  and 
1649,  and  proposed  in  1653,  that  no  one  practising  at  the 
bar  should  be  a  M.  P.  3  That  attempt  to  revive  the  Ordi- 
nance of  1372  would  have  been  justified  if  the  Lower  House 
had  sat  as  a  law  court;  but,  even  so,  had  it  not  failed,  it 
would  have  deprived  the  bar  of  those  political  instincts  which 
may  impair  its  scientific  perfection,  but,  at  least,  keep  it  in 
the  stream  of  national  life. 

On  one  important  point  the  Republicans  were  beyond  their 
age.  Parliament  recommended  Cromwell  and  his  Council  "  to 
take  some  effectual  advice  with  the  judges  for  .  .  .  reviving 
the  readings  in  the  several  inns  of  court,  and  the  keeping 
up  of  exercises  by  the  students  there."4  Among  the  Equity 
judges  and  those  of  the  Court  of  Probate  and  Administra- 

Vern.  and  Scr.  135),  and  Ormond's  (St.  8  &  9  Will.  iij.  c.  5;  2  Bro. 
P.  C.  256),  and  2  T.  R.  425,  705.  They  were  perhaps  created  also  by 
patent  as  in  Delacherois'  case  (11  H.  L.  C.  62).  They  had  no  freehold- 
ers nor  copyholders. 

1  Earle,  "  Miscrocosmographie "  ("and  aturney"):  Clar.  bk.  9:  Hud- 
son, «.  *. :  J.  Coke,  "The  Vindication,"  etc.,  p.  25:  Orders  in  Beames: 
St.  1654,  c.  44:  Oglander,  "Mem.  of  the  Isle  of  Wight:"  "Exam.  Legg. 
Angl.,"  and  Cock,  u.  s. 

*  "  Some  advertisements  for  the  new  election  of  burgesses  for  the  H. 
of  C.:"  J.  Coke,  I.  c.:  Clayton,  "Reports  and  pleas  of  assises  at 
Yorke,"  pref.:  6  Somers's  Tracts,  184,  189:  St.  1654,  c.  44. 

8  "Some  advertisements,"  etc.:  Whitelock,  430-3:  6.  Somers's  Tracts, 
184. 

4  Burton,  "Diary,"  1657,  June  26:  "Merc.  Pol.,"  No.  309.  Cp.  4 
Rep.  xviij.,  xix.:  North,  "  Guilford,"  p.  22:  Burnet,  "Hale,"  etc.,  on 
"  put-cases  "  and  "  mooters  " :  Smith,  1  Jur.  Soc.  Pap.,  385,  foil. 


478        IV.     THE    NINETEENTH    CENTURY 

tion  there  were  some  laymen,  and  there  were  to  have  been 
others  in  the  county  judicatures.  These  were  not  welcomed 
by  the  lawyers,1  and,  no  doubt,  they  did  some  harm ;  but 
they  were  "  expert  assessors,"  and  also  they  brought  public 
opinion  to  bear,  as  it  is  now  brought  by  the  Press  to  bear, 
upon  jurisprudence  and  legal  proceedings.  Like  the  asses- 
sors in  France  and  Germany,  like  those  suggested  by  the 
Judicature  Commission,  and  even  like  a  jury,  they  gave  the 
judicium  to  the  lawyers'  jus.  That  separation  of  duties, 
says  Mommsen,  and  the  tendency  of  pleadings  to  a  clear 
issue,  were  the  distinctive  excellences  of  Roman  Law/2  On 
the  abolition  of  the  House  of  Lords  some  of  the  Common 
Law  judges,  Hale,  Rolle,  Saint  John,  sat  in  the  Commons. 
The  practice  of  appointing  judges  "  during  their  good  be- 
haviour "  was  that  of  Spain  and  of  mediaeval  England,  and 
was  once,  at  least,  adopted  by  Charles.  Under  the  Common- 
wealth it  was  established,  and  after  the  Restoration  it  was 
by  degrees,  in  the  course  of  a  century,  established  again.8 
Up  to  the  time  of  the  Great  Rebellion  judges  had  bought 
their  places  for  fabulous  sums,  and  had  received  in  fees, 
bribes,  and  perquisites  sums  equally  fabulous ; 4  and  the  in- 
equality of  their  incomes  led  to  the  conflicts  of  jurisdiction 
of  which  I  have  spoken.  The  Puritans  struck  at  the  root 
of  this:  they  seized  the  notion  that  a  law  court  is  for  the 
advantage  of  the  community  —  not  a  shop  having  the  monop- 
oly of  a  certain  kind  of  justice;  they  laid  the  foundation  of 
the  suitors'  fee  fund ;  they  had  all  fees  paid  into  a  public 
account ;  they  gave  the  j  udges  fixed,  but  handsome,  salaries ; 
they  did  their  best  to  check  judicial  simony.5 

1  Clayton,  /.  c.  But  see  a  petition  against  the  monopoly  of  lawyers 
(British  Museum  iso.  g.  12).  and  the  1st  Rep.  of  the  Judicature  Com- 
mission, p.  14. 

•  "  Hist.  Rome,"  bk.  2,  c.  8,  n. 

8  See  Walter's  case  (Whitelock  11,  16:  Kal.  St.  Pap.  [Dom.  Ser.], 
1629-31,  pp.  76-8),  and  Rolle's,  Whitelock's,  Keble's  1'Isle's,  Kale's.  See 
also  1  Sid.  2:  St.  12  and  13  Will.  iij.  c.  2,  §3:  Hallam,  c.  15  (compared 
with  Macauley,  c.  18):  St.  1  Ann.  s.  1,  c.  8:  2  Ld.  Raym.  747:  St.  1 
Geo.  iij.  c.  23:  Blackstone  in  Steph.  "  Comm.,"  hk.  4,  pt.  1,  c.  6. 

4  As  Vernon,  J.;  Richardson,  C.  B.;  Caesar  and  Buck:  Jones,  "The 
new  returna  brevium,"  pp.  23,  30. 

•Comm.  Joiirn.  5,528;  7,670:  6  Somers's  Tracts,  186,  189:  Whitelock, 
882,  680:  Cock,  "Christian  Government,"  p.  186. 


U.     ROBINSON:   ANTICIPATIONS  479 

Partly  principle,  and  partly  necessity,  compelled  the  Puri- 
tans to  respect  scruples  about  oaths  and  affirmations.  Some 
of  the  sects  were  too  strong  to  be  oppressed;  and,  again, 
"  variers  "  had  the  countenance  of  public  opinion  as  long  as 
they  were  "  pious,"  and  their  variations  within  limits.  A 
bill  drawn  by  the  Committee  of  1653  did  away  with  promis- 
sory oaths  on  admission  into  universities,  corporations,  soci- 
eties, companies,  and  with  homage  and  fealty,  and  retained 
only  oaths  on  admission  to  public  offices.  This  anticipation 
of  Locke  and  Berkeley  and  Bentham  and  even  the  Victorian 
legislation  was  due  partly  to  dissent  from  the  doctrine  of 
the  39th  Article,  and  partly  to  a  sense  of  the  harm  done  by 
multiplying  oaths. 1 

But  how  imperfect  was  this  tolerance!  Stat.  1650,  c.  27, 
repealing  the  Elizabethan  statutes  which  enforced  attendance 
at  church,  itself  enforced  attendance  at  some  place  of  wor- 
ship. The  favour  shown  to  the  Hebrews,  as  much  for  pecuni- 
ary reasons  as  for  religious, 2  did  not  extend  to  Secularists, 
Friends,  Socinians,  Roman  and  Anglo-Catholics.  Such  as  it 
'was,  the  Restoration  put  an  end  to  it,  and,  in  spite  of  the 
efforts  made  in  1668  by  Hale  and  Bridgeman,  it  but  slowly 
obtained  once  more.  Gould,  J.,  aUowed  witnesses  to  hold 
up  their  hands  after  the  '45  and  in  1786 :  so  did  Wilson,  J.. 
and  the  Recorder  of  London  in  1788 ;  and  so  in  1791,  after 
some  demur,  did  Lord  Kenyon.3  The  philosophical  views 
contained  in  the  Report  of  the  Oaths  Commission,  and  more 
fully  in  Mr.  Denman's  bill,  hardly  existed  under  the  Com- 
monwealth.4 

1  Cp.  6  Somers's  Tracts,  181,  with  Bps.  Burnet  and  Tomline  on  the 
39th  Article,  and  with  St.  17  &  18  Viet.  c.  71,    §§    43,    44.      And     see 
"Hudibras,"   1,   2,    1112,    and   2,   2,   and    "The    Lady's    answer   to   the 
Knight,"  183,  and  Grey;    "Exam.  legg.  Angl.:"    Sanderson,  "  de  Jur. 
Prom.  Obi.,"  s.  f. 

2  Brett,  "Narrative  of  the  proceedings  of  a  great  council  of  Jews:" 
Dury,  "A  case  of  conscience:"   "A  narrative  of  the  late  proceedings  at 
Whitehall  concerning  the  Jews:"    Ben  Israel,  "  Vindiciae  Judaeorum:" 
Lingard,  vol.  8,  c.  7:    Hallam,  c.  11:    Carlyle,  "Cromwell,"  pt.  9.     Con- 
trast Kal.  St.  Pap.   (Dom.  Ser.),  1660-1,  p.  366.    There  were,  of  course, 
undisguised  Jews  in  England  before  Cromwell  connived  at  their  return 
[Smith,  "Willet,"  (1634)]. 

'Mildrone's  Case,  1  Leach,  C.  L.  412:  Walker's,  id.  ib.  498:  Mee  v. 
Reid,  1  Peake,  23.  Cp.  Reilly,  1  Jur.  Soc.  Pap.  435,  foil.,  with  Anstey, 
ib.,  371,  foil. 

4  But  see  Cock,  "  Christian  Govt.,"  p.  175. 


480        IV.     THE    NINETEENTH   CENTURY 

Legal  proceedings  and  literature  were  in  Latin  or  in 
French.  The  reformers  demanded  what  Coke  had  advised,1 
that  they  should  be  in  English.  The  French,  they  said, 
was  "  pedlar's "  and  "  hotch-potch,"  the  Latin  "  barbar- 
ous "  and  "  quelque  chose,"  and  the  only  use  of  them  was 
to  give  lawyers  a  monopoly  of  advocacy.2  In  1650  and 
1651,  Parliament,  complying  with  a  petition  from  the  army 
and  with  the  general  wish,  enacted  English  should  be  the 
language  of  law,  committed  to  the  Speaker,  the  Commis- 
sioners of  the  Seals  and  the  three  Heads  of  the  Common 
Law  Courts  the  supervision  of  the  translators,  and  pro- 
hibited the  use  of  court-hand.  Only  the  proceedings  in  the 
Admiralty  Court  were  to  remain  in  Latin  —  the  successor 
of  Spanish,  the  predecessor  of  French  —  as  the  diplomatic 
and  international  language.  In  1651  the  Upper  Bench 
made  a  rule  in  English,  and  afterwards,  while  the  Common- 
wealth lasted,  all  courts,  even  those  of  manors,  recorded 
their  proceedings  in  the  vulgar  tongue.8 

The  reporters  forewent  the  use  of  their  "  peculiar  dia- 
lect," now  under  protest,  evasively,  and  with  regret,4  now 
with  cheerfulness,  and  even  enthusiastically.5  French  and 
Latin  were  restored  with  Charles.  The  Wimbledon  rolls  were 
again  kept  (all  but  the  returns  to  precepts)  in  the  latter; 
cases,  even  those  decided  under  the  Commonwealth,  appeared 
"  in  their  native  beauty  "  in  the  former. 6  But  in  ten  years 
there  was  a  cry  for  the  late  convenience ;  7  and  in  seventy 
years  an  act,  bitterly  opposed,  almost  neutralized  two  years 

*4  Rep.  xx.,  xxi.:    1   Inst.  xl.,  xli.   (citing  St.  35  Edw.  iij.  c.  5). 

*  Jones,  "Eight  observable  points  of  law,"  §§  4,  8;  "The  new  ret. 
brev.,"   pp.    7,    15,    21-3;     "Judges    judged,"    etc.,   pp.    107,    114,    115; 
"Jurors  judges  of  law  and  fact,"  pp.  4,  5,  51,  77,  79,  86:    Warr,  "The 

Corruption,"  etc.,  cc.  3,  4:  Winstanly,  etc.,  u.  s.,  pp.  18,  19:  Cock, 
"  Christian  Govt.,"  pp.  133-5. 

"Stt.  1650,  c.  37;  1651,  c.  4:  followed  up  by  Stt.  1654,  c.  28;  1656, 
c.  10:  Whitelock,  384,  475-83:  Style,  261:  Wimbledon  rolls,  Nos.  12-15; 
roll  of  misc.  scripts;  bks.  7-9:  "Merc.  Pol.,"  No.  19. 

«Bulstr.  u.  s.:  Noy  [?],  pref.:  Clayton,  u.  s.:  Hetley,  pref.,  26,  36. 

'March,  pref.:    Bridgeman,  pref.:    Leonard  by  Hughes,  u.  ». 

•  Yelverton,  pref. :    2  Siderfin. 

T"An  appendix  by  way  of  dialogue  [to  the  2nd  part  of  'The  peo- 
ple's ancient  and  just  liberties  asserted  in  the  proceedings  against  and 
tryals  of  Thomas  Rudyard,  Francis  Moor,'  etc.]  "  (1670):  North, 
"  Guilford,"  p.  22. 


14*    ROBINSON:   ANTICIPATIONS  481 

later,  and  productive  of  some  bad  consequences,  revived  the 
statutes  of  1650  and  1651. J 

It  is  no  wonder  either  that  the  Republican  jurists  should 
have  desired  a  code,  or  that  they  should  have  failed  to  make 
one.  The  outline  of  a  code  had  been  partly  and  roughly 
drawn ;  the  need  for  one  was  urgent ;  the  necessary  science 
wanting.  The  outline  had  been  drawn :  authorities  had  been 
published  in  great  numbers  since  1640,  some  for  the  first 
time  —  writs,  original  (by  Hughes)  and  judicial  (by  Brown- 
low)  ;  "  Bracton ;  "  "  Britton,"  Bishop  of  Hereford,  or  who- 
ever else ;  "  The  Mirror,"  in  French  and  in  English ;  Fitz- 
Herbert's  "  De  natura  brevium;  "  the  last  three  parts  of 
"  The  Institutes."  Cases  and  statutes  had  been  abridged  — 
statutes  by  Wingate  and  by  Hughes ;  Coke's  reports  by 
Trotman,  Dyer's  by  Ireland,  Brooke's  by  March;  while 
Shepherd  had  abridged  statutes  and  cases  too. 2  Digests, 
more  or  less  systematic,  had  appeared  —  Swinburne  on 
"Wills,"  Bacon  on  "Uses,"  Wingate's  "  Statuta  Pacts," 
Shepherd's  "  Parson's  Guide ;  "  not  to  speak  of  Lambarde's 
and  Selden's  researches,  West's  "  Symboleography,"  Brown- 
low's  "  Declaration  and  Pleadings."  All  these  suggested 
something  more,  and  made  it  seemingly  feasible.  "  It  is 
fit,"  said  Sir  Anthony  Ashley  Cooper,  "  that  laws  should  be 
plain  for  the  people."  3  To  make  them  plain,  John  Coke 
proposed  to  clear  them  of  everything,  "  either  properly  and 
directly,  or  collaterally  and  obliquely,  repugnant  to  the  law 
of  God,"  a  method  which  he  may  have  pursued  in  Ireland,4 
and  which  had  been  pursued  in  the  Judaized  code  of  New 
England.6  Ten  years  later  Bulstrode  wished  "  to  file  off 
the  rust "  from  the  laws,  and  to  reduce  them  "  into  a  sound 

*Stt.  4  Geo.  ii.  c.  26  (see  7  C.  B.,  462:  Willes,  601);  6  Geo.  ii.  c.  14, 
§§  3,  5  (cp.  Noy  [?],  pref.):  Bl.  2  "  Comm.,"  323:  Smollett,  bk.  2,  c. 
4,  §25:  J.  Wesley,  "The  doctrine  of  original  sin,"  1,  2,  9. 

2  Add   "  Special   and   selected  law  cases   concerning  persons   and   es- 
tates, collected  out  of  the  Reports  and  Year  Books  of  the  Common  Law 
of  Engl."     (1641),  and  Finch's  "Law"  condensed  by  Wingate. 

3  Burton,  "  Diary,"  1657-8,  Febr.  2,  Rutt's  note. 

*"The  Vindication,"  etc.,  pp.  25,  26.  Cp.  "Exam.  legg.  Angl.," 
cc.  11;  12;  14,  §  13.  Coke,  though  his  "Vindication"  is  flattering  and 
cowardly,  was  praised  by  Cromwell  for  his  conduct  in  Ireland  and  died 
bravely  [Ludlow,  123  (137),  398  (407)]. 

8  Lechford,  "  Plaine  dealing,"  pp.  26,  27,  cited  in  "  Exam.  legg. 
Angl."  c.  14,  §3.  Even  then  English  Puritanism  looked  to  America. 


482        IV.     THE    NINETEENTH   CENTURY 

and  solid  body : "  the  task  would  be  heroic,  and  those  who 
did  it  the  founders  and  restorers  of  our  laws.  *  Parliament, 
meanwhile,  had  been  less  idle  than  ineffectual;  it  appointed 
a  Committee  of  Law  Reform;  it  read  the  book  containing 
the  whole  system  of  the  law  which  that  committee  composed ; 
it  ordered  three  hundred  copies  of  it  to  be  printed;  and, 
after  that,  all  Cromwell's  persuasion  could  not  induce  it  to 
do  any  more.2  The  truth  is,  that  the  Dutch  or  Swedish 
simplicity  which  Hugh  Peters  demanded  3  was  possible  only 
in  the  United  Provinces  or  in  Sweden,  and  that  the  reformers 
were  exorbitant.  Still  codification  was  desired.  In  1666  a 
committee  was  appointed  under  Clarendon  to  make  a  code,4 
and  Hale's  "  Pleas  of  the  Crown,"  and  his  "  Analysis  of  the 
Civil  [rather,  of  the  non-criminal]  Part  of  Our  Law,"  are 
torsjos  of  parts  of  the  code  of  the  Commonwealth.  On  the 
latter,  though  neither  exhaustive,  nor  free  from  cross-divi- 
sions, a  system  might  have  been  built  far  more  palatial  and 
perfect  than  Blackstone's ;  and,  comparing  those  sections, 
of  it  which  correspond  with  the  "  Synopsis  totius  Littleton 
analytice"  (1659),  we  see  how  near  the  Puritans  were  to 
that  Baconian  "  reduction  and  recompilation  of  the  laws  " 
for  which  we  wait.  Mr.  Fitz-James  Stephen  contrasts  the 
"  Pleas  of  the  Crown  "  with  the  "  Third  Institute,"  as  a  code 
with  a  digest ;  and  Professor  Amos  says  that  though  Hale 
has  not  extended  his  supremacy  over  the  whole  see  of  the 
Criminal  Law,  he  was  peculiarly  qualified  for  the  Papal 
Chair.5  A  criminal  code  is  easier  to  make  than  a  civil,  and 
perhaps  more  useful:  the  magistrate  is  never  a  more  suc- 
cessful schoolmaster  than  when  he  teaches  from  such  a  text- 
book; and  the  value  of  a  civil  code  to  the  laity  was  even 
more  exaggerated  under  the  Commonwealth  than  it  now  is. 


*1  Bulstr., .pref.  Cp.    "An  experimental  essay,"  etc.  (1648). 
*Whitelock,  519:    Carlyle,  "Cromwell,"  Speeches  2  and  5:    "A  Vin- 
dication of  the  laws  of  Engl.,"  u.  s. 

*  Peters,   "  Legacy "     (in   Harris   1   "  Lives,"  xxv.,   quoted  by   Rutt, 
«.  ».)  :    Whitelock,  430-3,  521,  601. 

*  Comm.  Journ.  1666,  Oct.  5. 

6  Austin,  "Lectures"  (1863),  vol.  1,  p.  cix.;  vol.  3,  p.  279:  A.  Amos, 
"  Ruins  of  the  time  exemplified  in  Sir  Matthew  Hale's  '  Hist,  of  the 
Pleas  of  the  Crown'"  (1856),  pp.  1,  3:  Stephen,  "Criminal  Law,"  c.  2: 
Bacon,  "  Certayne  articles,"  «.  «.,  etc. 


14.    ROBINSON:   ANTICIPATIONS  483 

In  what  is  commonly  though  too  narrowly  called  Crim- 
inal Law  the  Republicans  made  few  improvements.  As  to 
treason  and  rebellion,  that  necessity  of  preserving  some  con- 
stitution which  created  High  Courts  of  Justice  must  answer 
for  their  proceedings.  As  to  other  crimes,  reforms  were 
planned,  but  (so  inadequate  were  conceptions  of  the  dignity 
and  value  of  the  individual)  few  of  these  were  carried  out, 
and  some  measures  were  proposed  and  contemplated  which 
were  retrogressive.  In  1648  it  was  suggested  that  treason, 
rebellion,  and  murder  only  should  be  capital,  and  that  other 
felonies  should  be  punished  by  fines  or  by  servitude  to  the 
person  injured.1  The  Committee  of  1653  proposed  to  dis- 
continue pressing  to  death  in  default  of  pleading,2  to  acquit 
(without  penalty  or  forfeiture,  pardon  or  deodand)  justi- 
fiable and  excusable  homicides,  to  punish  principals  in  man- 
slaughter and  accessories  before  the  fact  with  judgment 
of  death  without  forfeiture  or  corruption  of  blood,  and 
accessories  after  the  fact  with  forfeiture  and  five  years' 
imprisonment;8  to  abolish  "clergy;"  to  repeal  the  law 
approved  by  Selden  "  of  devoting  to  the  flames  those  wicked 
baggages  who  stain  their  hands  with  the  nefarious  murder  of 
their  husbands."  Then  acts  were  passed  —  one,  embody- 
ing another  of  their  proposals,  against  provocations  to 
duels ;  5  one  against  those  who  encouraged  others  in  extrav- 
agance ; 6  others  against  cockfights  and  horseraces. 7  But 
the  imaginary  offence  of  witchcraft  was  left  criminal ;  deer- 
killing  was  punished  by  a  fine  of  £15  or  a  year's  imprison- 
ment ;  acts,  sinful  or  vicious  rather  than  criminal,  were  pun- 
ished; incest,  adultery,  and  repeated  fornication  were  pun- 
ished with  death ;  so  the  Committee  were  for  making  bigamy 
capital,  and  cutting  off  the  right  hand  of  a  murderer  before 

1  "  An  experimental  essay,"  etc. 

2  6  Somers's  Tracts,  234,"  235:    "Exam.  legg.  Angl."    c.  11,  §9.     Cp. 
Stt.  12  Geo.  iij.  c.  20;   7  and  8  Geo.  iv.  c.  28. 

3  6  Somers's  Tracts,  235. 

4  6  Somers's  Tracts,  236:    6  Rep.  pref.   (quoting  Caesar,  6  B.  G.  19): 
Selden,  "Janus  Augl,"  bk.  1,  c.  11.     Cp.  Statt.  30  Geo.  iii.  c.  48;  54  Geo. 
iii.  c.  146;  9  Geo.  iv.  c.  31. 

8  6  Somers's  Tracts,  188:    Statt.  1654,  c.  36;    1656,  c.  10. 

'St.  1656,  c.  26:  Comm.  Journ.  1650,  June  7:  3  Parl.  Hist.  1346. 

7  Statt.   1654,  cc.  2,  39:    Grey's  note  on  "  Hudibras,"  1,  1,  800. 


484        IV.     THE   NINETEENTH   CENTURY 

hanging  him.'1  In  1649  Whitelock  inveighed  against  the 
inequality  of  punishment ;  and  in  1656  Cromwell  repeated 
his  invective.  2  One  doctrine  of  Whitelock's  was  accepted  by 
the  Committee:  it  was  that  criminals  prosecuted  by  counsel 
should  be  defended  by  counsel;  that -criminals  should  have 
copies  of  their  indictments,  and  that  their  witnesses  should 
be  heard  on  oath.  But  it  seems  to  have  been  thought  that 
criminals  had  already  too  many  chances,  and  therefore  these 
rights  and  that  of  appeal  were  denied  them.8 

The  law  of  marriage,  in  a  country  such  as  this,  is  almost 
the  groundwork  of  the  law  of  property.  The  variety,  the 
occasional  contempt  of  ceremony  in  which  the  Puritans  in- 
dulged, the  downfall  of  that  hierarchy  which  had  taken  cog- 
nizance of  matrimonial  affairs,  made  legislation  unavoid- 
ble.  A  form  of  solemnization  had  been  prescribed  by  the 
Presbyterian  Directory,  but  was  regarded  with  ridicule  by 
Churchmen,  with  suspicion  by  those  who  prescribed  it ;  others 
did  not  regard  it  at  all. 4  The  Committee  of  1653  proposed 
a  new  order:  it  became  law  that  year,  and  in  1656  ceased 
to  be  compulsory,  but,  as  optional,  was  ratified.  It  directed 
three  weeks'  advertisement  to  be  given  in  Church,  chapel 
or  market-place  of  intended  marriages ;  the  parents'  or 
guardians'  consent  to  be  obtained;  the  form  to  be  a  mutual 
agreement  expressed  before  a  justice  of  the  peace:  girls 
below  fourteen  and  boys  below  sixteen  were  not  to  be  mar- 
ried.5 That  statute  unwittingly  revived  something  of  the 
practice  of  Christian  antiquity ;  then  the  faithful,  though  he 
might  hallow  his  union  by  the  benediction  of  the  Church, 
yet,  hating  paganism,  and  perhaps  being  of  the  lower  or- 
ders, would  avoid  anything  like  confarreatio,  and,  as  a 
Roman  citizen,  would  be  bound  by  the  civil  contract  only ; 

1  Statt.  1652,  c.  27  (cp.  14  "  St.  Tr."  639  foil.,  690  foil.)  ;  1651,  c.  12: 
6  Somers's  Tracts,  190,  235,  and  statutes  cited  above,  pp.  589,  590: 
"Exam.  legg.  Angl."  c.  14,  §§29,  32. 

*  Carlyle's  "  Cromwell  "   (speech  5)  :    "  Exam.  legg.  Angl."  c.  11. 

8 Whitelock,  433;  "Life,"  109-120:  6  Somers's  Tracts '235:  Hutton, 
133:  "Directions  for  justices  of  the  peace,"  No.  7  (prefixed  to  Kelyng) : 
Mr.  Commissioner  Hill,  "The  repression  of  crime"  (1857),  pp.  25-41. 

4  St.  1645,  c.  51:  Grey  on  "  Hudibras,"  3,  1,  888.  Cp.  Nelson,  "  Bull," 
§9:  Cock,  "Christian  Govt.,"  p.  52. 

8Stt.  1653,  c.  6;  1656,  c.  10:  6  Somers's  Tracts,  179.  Cp.  the  New 
Engl.  law  (Lechford,  I.e.  p.  39). 


U.     ROBINSON:   ANTICIPATIONS  485 

it  also  anticipated  our  statute  of  1837,  and  even  the  French 
codes.1  In  accordance  with  it,  the  daughter  of  Saint  John, 
C.  J.,  was  married  in  his  presence ;  and  in  actions  of  debts 
and  of  ejectment  marriages  between  Friends  were  held  valid. 
But  at  the  Restoration  the  greater  part  of  these  irregular 
rites  were  and  had  to  be  confirmed.2  The  statutes  of  1645 
and  1653  improved  also  on  the  Tudor  and  Stuart  registra- 
tion system;  that  system  did  officially  what  private  records 
(such  as  the  Liber  obitalis  at  Queen's  College,  Oxford)  had 
long  done;  it  chronicled  the  performance  of  baptisms,  wed- 
dings, and  burials.  The  Republican  method  chronicled  the 
occurrence  of  the  birth,  the  making  of  the  marriage  con- 
tract, but  the  burial  —  not  the  death.3  The  statute  of  1650 
against  incest  being  penal,  marriages  took  place  within 
degrees  which  it  did  not  prohibit,  though  the  law  existing 
did:  many  of  these  were  pronounced  invalid  after  the  Res- 
toration.4 Women  were  deservedly  influential  among  the 
Republicans ;  men's  extravagance  was  restrained  by  statute ; 
a  bill  intended  to  restrain  women's,  and  much  needed,  was 
thrown  out ;  and,  not  to  speak  of  other  movements  in  their 
favour,  the  protection  given  under  Charles  II.  by  Hale  and 
others  to  wives  against  their  husbands.  6 

That  men's  titles  to  their  estates  in  land  should  be  thor- 
oughly known  had  become  of  great  importance.  Many  an 
acre  had  been  sequestrated  and  brought  into  the  market ; 

1  Milman,  "Latin  Christianity,"  bk.  3,  c.  5:  " Manuale  Ebor."  and 
"Man.  Sarisb.:"  Dr.  Goldingham  in  Bunting  v.  Leplngwell,  Moore,  170: 
Chaucer.  "The  wife  of  Bathe's  prologue:"  Menochius,  "  DC-  praesump- 
tionibus"  (1595),  3.  2.  7,  et  11  cc.:  Dalrymple  v.  Dalrymple,  2  Hagg. 
C.  R.  64,  67-70:  Jurieu,  "Hist-Counc.  Trent,"  bks.  7  and  8:  Stt.  6  & 
7  Will.  iv.  c.  85  ;  10  &  11  Viet.  c.  58  :  Le  Code.  Civil,  §§  75,  76,  165  : 
Le  Code  Penal,  §§199,  200.  The  ring  is  a  trace  of  coemptio:  cp.  Ben- 
j  amin,  "  contract  of  sale." 

21  Hagg.  C.  R.  app.  9  n.:  Burnet,  "Hale:"  North,  "GuUford:" 
Stt.  J2  Car.  ii.  c.  33;  13  Car.  ii.  c.  11.  And  see  St.  6  &  7  Will.  iii. 
c.  6,  §§  63,  64. 

8  Cp.  the  70th  Canon  with  6  Somers's  Tracts,  179;  Stt.  1645,  c.  51; 
1653,  c.  6,  §§  4,  10,  11:  and  these  again  with  St.  30  Car.  ii.  c.  3,  and  the 
acts  since  1820.  St.  1653  c.  6,  extended  to  Ireland. 

4  See  Harrison  v.  Burwell:  Hill  and  Wife  v.  Good:  Watkinson  v. 
Murgatroyd;  Collet  v.  Collet;  Hinks  v.  Harris.  Cp.  Selden,  "  De  succes- 
sionibus,"  etc.,  cc.  14,  15;  "  Uxor  Ebraica,"  bk.  1,  cc.  12-15. 

8  2  Lev.  128;  1  Str.  477;  1  Sid.  113,  116:  3  Keble,  433.  Cp.  St.  1656, 
c.  26,  with  "  Parl.  Hist."  1650,  June  7. 


486        IV.     THE   NINETEENTH   CENTURY 

the  market  was  full  of  powerful  capitalists.  Never  had 
registration  been  in  greater  request.  As  long  as  landed 
property  was  transferred  by  physical  delivery,  so  long  its 
transfer  was  notorious  to  those  to  whom  it  was  likely  to  pass.1 
And  though  that  form,  like  mancipatio  in  Rome,  was  aban- 
doned on  account  of  its  awkwardness,  there  was  a  custom  of 
selling  "  book-land  "  at  the  sheriff's  county  court,  and  of 
recording  the  sale  at  the  nearest  monastery  in  a  cartulary  or 
in  a  ra.  *.  of  the  Gospels  or  in  a  "  land-book,"  and  these  were 
sometimes  placed  on  the  Altar.  Such  a  register,  but  of  the 
house's  own  title,  is  the  Liber  Evidentiarum  of  S.  Augustin's 
at  Canterbury.2  Analogous  to  these  records,  dating  from 
the  earliest  English  times,  were  the  court  rolls  of  manors,  as 
those  of  the  manor  of  Taunton  and  Taunton  Deane.  But 
now  monasteries  had  been  swept  away ;  the  Statute  of  Inrol- 
ments  did  not  apply  to  counties  palatine  and  to  many  cor- 
porate towns,  and  was  not  regarded  in  one  case  out  of  an 
hundred.3  How  many  law  suits  were  due  to  the  want  of 
a  land  registry  we  know  from  Hobbes  *  and  we  might  guess 
from  the  establishment  of  such  institutions  for  soldiers' 
debentures,  and  for  the  sale  of  Church,  Crown,  and  Royalist 
property.6  There  were  even  proposals  for  county  regis- 
teries:  sales  not  recorded  in  them  within  a  certain  time  were 
to  be  void ;  land,  the  sale  of  which  was  so  recorded,  was  not 


1  1st  Rep.  of  the  Registration  and  Conveyancing  Comm.  (1850)  pp.  3, 
4;  app.  6;  Rep.  of  the  Registration  of  Title  Comm.  (1857),  p.  2;  Steph. 
"Comm."  2,  1,  17,  20:  Williams,  1  Jur.  Soc.  Pap.  45;  2,  589;  Ludlow,  »6. 
2,  140. 

*  Hickes  to  Shower,  "  Dissertatio  epistolaris,"  p.  9  (1703)  Brit.  Mus. 
Arundel  Mss.  310.    The   inventories    or   "  stars,"    perhaps   the   same   as 
ghetarim,  which  Richard  I.  made  the  Hebrews  keep  of  their  debts,  mort- 
gages, lands,  houses,  revenues  and  possessions,  were  rather   part   of  an 
apparatus   for  extortion  than  registers  of  title.    See  Roger  of  Hoveden, 
"  Annales,"  pars  post.,  Riv.  prim.,  capitula  de  Judaeis;   Selden,  "Of  the 
Jews  sometimes  living  in  Engl.:  "Du  Cange,"  sv.  "  star  rum:"  Steph. 
"  Comm."  6,  14,  3,  n. 

*  Sanders,  2   Uses,  66 :   Pierrepoint,  "  A  treatise  concerning  registers," 
etc.  (c.  1660).    Was  he  the  Protector's  friend  (as  to  whom  see  Carlyle, 
"  Cromwell ")  ? 

*  "  A  dialogue  between  a  philosopher   and   a   student   of  the  Common 
Laws   of   Engl."    (of   Courts):   "Exam.    legg.  Angl."  c.  14,  §  35:   Cock, 
"Christian  Govt."  p.  171:   Grey  on  3  "  Hudibras,"  1,  1519,  1520. 

8  Stt.  1646,  c.  66;  1647,  c.  75;  1648,  c.  113;  1649,  cc.  24,  42,  76;  1650, 
CC.  29,  30,  47;  1651,  c.  10;  1652,  cc.  6,  16,  23,  31;  1653,  c.  10. 


U.     ROBINSON:   ANTICIPATIONS  487 

to  be  subject  to  any  incumbrance.  But,  because  the  Com- 
mittee could  not,  after  trying  for  three  months,  settle  what 
an  incumbrance  was,  the  proposal  fell  to  the  ground,  and 
registration  was  left  permissive,  that  is,  nugatory.  "  The 
English  people,"  said  Cromwell,  "  will  take  Ireland,  which 
is  as  a  clean  paper  in  that  particular,  for  a  precedent ;  and 
when  they  see  at  how  easy  and  cheap  a  rate  property  is  there 
preserved,  they  will  never  permit  themselves  to  be  cheated 
and  abused  as  they  now  are."  1  And  yet  the  advocates  of 
registration  had  not  wholly  failed.  The  Bedford  Level  was 
a  creation  of  the  Republicans;  to  them  it  owes  its  regis- 
tration system : 2  to  them  also  are  due,  however  remotely, 
the  acts  for  Yorkshire,  and  Kingston,  and  Middlesex,  the 
Victorian  legislation  for  Ireland,  the  permissive  statutes  of 
1862.3  Pierrepoint  objected  to  their  schemes,  the  injustice 
done  to  persons  nominally  entitled,  and  the  expense.4  Hale 
was  on  the  other  side.5  But  a  student  of  the  history  of 
land  registries  in  England  may  well  doubt  whether  any  one 
interested  in  land  desires  them.  As  Hale  said,  every  feature 
of  the  title  must  be  inrolled,  "  as  well  for  the  time  past  as 
for  the  time  to  come;  otherwise  the  plaister  is  too  narrow 
for  the  sore  .  .  .  for,  if  any  one  leak  be  left  unstopped, 
the  vessel  will  sink  as  if  more  were  open." 

The.  law  of  personal  property  was  at  this  time  more  im- 
portant than  that  of  real.  Personal  property,  when  em- 
ployed in  agriculture,  had  still  a  far  higher  relative  value 
than  it  now  has ; 6  and  commerce  was  on  the  rapid  increase. 
Cases  like  Twyne's 7  of  mercantile  immorality,  connoting 

»7  Comm.  Journ.  67,  100,  etc.:  Ludlow,  123  (137),  165  (184),  398 
(407)  St.  1653,  c.  10.  Cp.  G.  Smith,  "  Irish  Hist,  and  Irish  Character," 
».f. 

2Statt.  1649,  c.  29;  1654,  c.  20  (cp.  c.  57);  1650,  c.  10;  15  Car.  ii.  c. 
17  (cp.  10  Sim.  127) :  Dugdale,  "  Hist,  of  Imbanking,"  etc.,  cc.  32-41,  54 
(1662):  Carlyle  "Cromwell." 

'  With  St.  25  and  26  Viet.  c.  53  cp.  Bradish  v.  Ellames  10  Jur.  (N.  S.) 

* "  A  treatise,"  etc.  u.  s. 

8  "  A  treatise  showing  how  useful  .  .  .  the  enrolling  a.nd  registering  of 
all  conveyances  of  lands  may  be,"  etc.  Cp.  Philpot,  "  Reasons  and  pro- 
posals for  a  registry,"  etc.  (1671);  Adam  Smith,  "  W.  of  N.,"  book  5, 
c.  2,  pt.  2,  app.  to  articles  1,  2:  Mill,  "Pol.  EC."  bk  5,  c.  8,  §  3. 

•Prof.  Rogers,  "The  laws  affecting  landed  property"  (1869),  p.  11. 

7  3  Rep.  82  ("  quaeritur  ut  crescant  tot  magna  volumina  legis:  in 
promptu  caussa  est;  crescit  in  orbe  dolus").  , 


488        IV.     THE   NINETEENTH   CENTURY 

mercantile  enterprise,  complicating  law  which  otherwise 
might  have  been  as  simple  as  the  Swedish ; a  the  growth  of 
banking;2  the  fact  that  the  Jacobean  and  Caroline  exac- 
tions were  so  long  borne;  the  evidences  of  Bacon,  Mun,  and 
Clarendon  8  —  all  convince  us  of  this.  One  result  of  that 
increase  was  that  the  mantle  of  Equity  thrown  by  Ellesmere 
over  the  mortgagor  was  taken  from  him.  Another  was  that 
debts,  hitherto  assignable  by  and  to  the  Crown  only,  were 
made  assignable  by  and  to  any  one;  hence  that  development 
of  the  law  as  to  bills  of  exchange  (especially  necessary  to 
commercial  intercourse  when  the  exportation  of  the  precious 
metals  was  prohibited)  which  had  taken  place  in  Spain,  took 
place  in  England.4  Then,  besides  the  minor  courts  of  which 
I  have  spoken,  means  were  proposed  of  recovering  small 
debts  and  debts  due  from  corporations.5  Again,  notwith- 
standing the  jealousy  of  monopolies,  inventors  received 
patent  rights,  even  if  they  did  not  come  within  the  statute 
of  James.6  The  Statute  of  Fraudulent  Devises  was  fore- 
stalled; and  even  that  of  Frauds  and  Perjuries,  suggested 
by  Hale  to  Nottingham,  brought  in  by  him,  enlarged  and 
revised  by  Guildford  and  Jenkins,  may  well  have  been 
planned  by  the  Committee  of  1653.7  Lastly,  bankruptcy 
acts  protected  the  unfortunate  and  sent  the  dishonest  to  be 
tried  by  a  jury;  imprisonment  for  debt,  though  no  .doubt 
unnecessarily  cruel,  and  bitterly  attacked,  particularly  by 
prisoners,  was  well  and  successfully  defended.8 

The  frequency  of  sales  of  confiscated  land,  the  unwilling- 

1  Whitelock,  430-32;    601. 

•"Exam.  legg.  Angl."  c.  14,  §  39:  Clar.  "Life,"  3,  7:  St  22  and  23 
Car.  ij.  c.  3,  §  2. 

'Bacon,  "Advice  to  Sir  G.  Villiers"  (1615-16):  Mun.  "  Engl.  treas- 
ure by  foreign  trade"  (c.  1625):  Clar.  bk.  1. 

4  Breverton's  Case,  Dyer,  30  b.:  Rolle,  "  Abr."  (action  sur  case  [V] 
60,  61):  Stt.  1646,  c.  65;  1649,  c.  24  (Scobell  [1658],  pt.  2,  pp.  23,  28): 
6  Somers's  Tracts,  187.  But  see  Mayor,  "Baker's  'Saint  John's  Coll., 
Cambr.'  p.  383." 

•6  Somers's  Tracts,  184,  187.         "Stt.  1650,  c.  39;   1651,  c.  2. 

7 6  Somers's  Tracts,  186:  St.  1654,  c.  25.  Cp.  Stt.  29  Car.  ii.  c.  3;  3 
&  4  W.  .&  M.  c.  14:  and  see  Benjamin,  "Contracts  of  Sale,"  bk.  1,  pt.  2, 
c.  1  (where  read  5  East,  17,  and  Wynne,  "Jenkins,"  I,  liij.)  ;  Gilbert,  171. 

•Statt.  1653,  c.  13;  1654,  c.  41:  Jones,  "The  new  ret.  brev."  p.  11; 
"The  peace  of  justice"  p.  *.;  "Judges  judged,"  etc.;  "The  crie  of 
bloud ; "  "  Every  man's  case,"  etc. :  petition  to  Cromwell  from  the  pris- 
oners in  the  Fleet  against  oppression  [Brit.  Mus.  '^LUTI:  "Reasons 


U.     ROBINSON:   ANTICIPATIONS  489 

ness  of  purchasers  to  take  a  parliamentary  title,  the  outcry 
against  feudal  and  manorial  rights,  drew  men's  eyes  to  the 
law  of  realty.  "  It  were  convenient,"  wrote  an  essayist  in 
1648,  "  that  there  might  be  no  estate  but  absolute,  for  life  or 
inheritance,  without  conditions  and  entayles,  whether  given  by 
will  or  purchased  by  deed  in  writing ;  and  this  would  shorten 
all  suits  about  estates."  Such  a  change,  though  considered, 
was  never  brought  about,1  and  another  proposal  of  the  es- 
sayist, that  all  customs  should  be  assimilated,  was  rejected, 
even  as  to  the  customs  affecting  the  inheritance  of  the  land. 
But  every  temptation  and  security  was  offered  to  purchasers.2 
James  had  consented  to  the  sacrifice  of  many  feudal  inci- 
dents on  condition  of  being  repaid  by  fee  farm  rents.  Gus- 
tavus  Adolphus  had  abolished  purveyance  in  Sweden;  the 
Republicans  abolished  it  in  England,  and,  with  it,  billet  and 
free  quarter.  They  put  an  end  to  the  Courts  of  Wards  and 
Liveries,  to  wardships,  liveries,  primer  seisin,  ouster-le-main, 
and  charges  incident  to  these,  to  homage,  to  fines,  licenses, 
and  seizures  for  alienation  of  lands  held  by  tenure  in  chief; 
they  turned  into  common  socage  all  higher  tenures.  The 
profits  to  the  State  from  these  were  replaced  by  a  real  land- 
tax,  itself  replaced  after  the  Restoration  by  an  increase  of 
the  Republican  excise. 3  Then  it  was  proposed  to  take  away 
fines  and  recoveries,  and  to  compel  by  simple  means  the  pay- 
ment of  rent.4  Trusteeship  to  preserve  contingent  remain- 
ders was  invented  to  evade  the  confiscatory  acts ;  as  from ' 
the  statutes  against  Romanists  so  much  else  in  conveyancing 
flowed.5  It  would  have  been  rash  to  disregard  the  claims 
of  "  the  common  people,"  as  the  copyholders  (in  opposition 

for  the  continuance  of  the  process  of  arrests,"  etc.  (c.  1651).  Hugh 
Peters's  "  Good  work  for  a  good  magistrate  "  was  answered  by  Vaughan 
[Jones,  "The  crie  of  bloud,"  A  2]. 

1  "  An  experimental  essay,"  etc.,  «.  *.  Cp.  6  Somers's  Tracts,  182: 
"  Exam.  legg.  Angl."  c.  11,  §§  22,  23. 

1  Stt.  1642,  c.  4;    1646,  c.  67;    164T,  c.  124;    1648,  c.  122;  etc. 

8  Bacon,  "Works,"  ed.  Spedding,  vol.  10,  pp.  178  foil.,  266  foil.,  304, 
305:  Stt.  1643,  c.  19;  1645,  c.  59;  1646,  Feb.  24;  1647,  c.  92;  1649,  c. 
25;  1652,  c.  14;  1654,  c.  9  (abolishing  wardship,  etc.,  in  Scotland);  1656, 
cc.  4,  7,  10,  — 25  St.  1656,  c.  4,  especially:  1  Bl.  "  Comm."  288,319.  Cp. 
the  Statt.  of  12,  13,  14,  and  15  Car.  ii. 

*  6  Somers's  Tracts,  182,  183. 

8  Williams,  1  Jur.  Soc.  Pap.  54,  55:  Davidson,  "Precedents,"  intr.  c. 
1:  Prof.  Rogers,  u.  s.  pp.  9,  10. 


490        IV.     THE    NINETEENTH   CENTURY 

to  the  gentry  and  the  freeholders)  were  then  and  long  after- 
wards called,1  for  these  had  been  led  to  think  that  the  suc- 
cess of  the  Parliament  would  relieve  them  of  their  "  Nor- 
man "  lords.2  Accordingly,  it  was  proposed  to  ascertain 
arbitrary  fines  upon  the  descent  and  alienation  of  copyholds, 
and  to  place  the  conditions  of  the  tenure  beyond  the  dis- 
cretion of  the  homage.3  Many  copyholds  were  actually 
enfranchised;  but  many,  even  of  those  confiscated,  were 
still  demised  by  copy  of  court  roll  and  not  otherwise.  Com- 
monable  rights  were  not  so  far  recognized  that  commoners 
were  allowed  to  break  up  common  land.4  The  allotment 
system  instituted  under  Henry  VII,  carried  out  under  his 
grandchildren,  recommended  by  Bacon,  but  already  decay- 
ing, was  partly  restored,  and  there  were  fewer  "  silly  "  cot- 
tages. 6 

But,  after  the  Restoration,  Parliament  continuing  to  the 
greater  tenures  the  relief  afforded  to  them  under  the  Re- 
public, but  substituting  an  excise  for  a  land-tax,  left  the 
lesser  tenures  exposed  to  the  old  abuses.  That,  as  North 
says,  "  was  somewhat  unequal." ( 

What  would  have  been  the  economical  effect  of  these 
changes  ?  Would  Coke's  copyholder,  7  if  his  land,  enfran- 
chised during  the  Commonwealth,  had  not  been  reinstated 
at  the  Restoration,  have  escaped  being  bought  up  by  cap- 
italists? Would  a  land  registry  have  preserved  or  aided 
"to  extinguish  a  peasant  proprietary?  Would  the  annihila- 
tion of  equities  of  redemption  have  favoured  any  but  the 
rich? 

1  Winstanly,  Barker  and  Star,  u.  s. :  Foote,  "  The  Mayor  of  Garratt," 
2,  1.  Sheridan,  "  A  trip  to  Scarborough,"  5,  2. 

1  Winstanly,  etc.,  u.  s.  Cp.  Cock,  "  Engl.  Law,"  p.  48 ;  Thierry,  u.  s. 
Absurd  as  it  was  to  call  the  Royalists  "  Norman,"  still  in  that  party 
were  probably  most  of  the  lords  of  manors.  Lambert  was  Lord  of  the 
Manor  of  Wimbledon  during  the  Commonwealth. 

8  6  Somers's  Tracts,  183:    "Exam.  legg.  Angl."  c.  14,  §36. 

'Winstanly,  etc.,  u.  s.:  St.  1646-7,  c.  72:  Cock,  "Christian  Govt."  p. 
174. 

5  Bacon  essay  "of  the  true  greatness  of  kingdoms  and  estates;" 
"Henry  VII.;"  speech  of  naturalization  (1607):  "An  experimental 
essay,"  etc.,  u.  s.:  "The  Fall  Mall  Gazette,"  No.  1286. 

•  North,  "  Guilford,"  pp.  23,  24,  140,  241.     Contrast  Cock,  "  Christian 
Govt."  p.  170. 

*  Co.  Cop.  in  Williams,  "  Real  Property,"  pt.  3. 


U.     ROBINSON:   ANTICIPATIONS  491 

If  we  contrast  the  legislation  of  the  Commonwealth  with 
that  of  Frederick  the  Great,  or  with  that  of  the  French 
Revolutionists,  or  even  with  our  legislation  for  India,  we 
are  struck  by  its  poverty  of  principle,  by  its  abundance  of 
anomalies.  How  shall  we  account  for  this?  The  English 
had  more  learning  than  thought.  They  were  not  sufficiently 
nor  critically  acquainted  either  with  Roman  Law  or  with 
Comparative  Nomology.  They  were  illuminated,  not  by 
Philosophy,  but  by  a  misconception  of  what  had  been  the 
religion  of  the  Hebrews.  They  were  slightly  instructed  in 
Philology  (as  opposed  to  Latin  Literature),  still  more 
slightly  in  Natural  Scienqe,  Political  Economy,  and  other 
sciences  and  quasi-sciences  ancillary  to  jurisprudence.  They 
had  chaos  before  them,  and  they  had  not,  except  in  Ireland, 
"  a  clean  paper  "  to  work  upon.  Such  a  fair  field  lay  in 
Prussia,1  in  France,  in  India,  and  lies  in  Russia  now.  We 
in  England  have  the  materials  which  they  had,  but  better 
digested ;  we  have  those  sciences.  Philology  has  redeemed 
Law  from  barbarism 2 ;  Political  Economy  and  Natural 
Science  have  supplied  it  with  principles.  No  solicitor-gen- 
eral and  chief  justice  would  propose  John  Coke's  theocratic 
reform  of  our  statutes  and  leading  cases.  Not  an  Hale  only, 
but  ordinary  students  in  our  universities,  read  Roman  Law 
by  the  light  of  Roman  History  and  the  History  of  Philos- 
ophy.3 

We  look  at  the  systems  of  the  Hebrews,  the  Spaniards, 
the  Dutch,  the  Swedes,  not  with  the  contracted  vision  of  the 
Republicans,  but  comprehensively,  as  critics  should.  And 
yet  —  I  mean,  and  therefore  —  we  cannot  sneer  with  Black- 
stone  at  the  crude  and  abortive  schemes  for  amending  the 
laws  devised  in  the  times  of  confusion. 


'See  Carlyle,  "Frederick,"  11,  1;    16,  1,  2,  4,  8. 

*Cp.  "  praebendarius,  qui  praebet  '  auxilium  episcopo"  [E.  Coke], 
"  qui  praebendam  suscipit"  [Du  Cange] :  and  see  Hamilton,  "Discus- 
sions," (1853),  pp.  344,  345:  Phillimore.  "Roman  Law,"  pt.  1,  c.  1: 
Doellinger,  "  Universities  past  and  present." 

*  Burnet,  "Hale,"  pp.  17,  18:  cp.  Leibnitz,  "New  methods  of  teach- 
ing and  learning  law"  (1667),  and  "Plan  for  rearranging  the  Corpus 
Juris"  (1668);  and  see  the  lines  beginning,  "In  Institutis  comparo  vos 
brutis,"  quoted  by  Lord  Westbury,  1  Jur.  Soc.  Pap.  6 ;  Phillimore,  /.  c., 
pt.  2,  c.  4:  Gueterbock,  "  Bracton,"  c.  7. 


15.     BENTHAM'S  INFLUENCE  IN  THE  REFORMS 
OF    THE    NINETEENTH    CENTURY1 

BY  JOHN  FORREST  DILLON  2 

"TT>ENTHAM'S  theories  upon  legal  subjects  have  had  a 
J— *  "  degree  of  practical  influence  upon  the  legislation 
"  of  his  own  and  various  other  countries  comparable  only  to 
"  those  of  Adam  Smith  and  his  successors  upon  commerce." 
Such  is  the  opinion  of  Sir  James  Stephen  concerning  the  in- 
fluence and  effect  of  Bentham's  legal  writings  and  labors.3 
As  late  as  1874  Sir  Henry  Maine  went  so  far  as  to  declare: 
"  I  do  not  know  a  single  law  reform  effected  since  Ben- 
"  tham's  day  which  cannot  be  traced  to  his  influence ;  but  a 
"  still  more  startling  proof  of  the  clearing  of  the  brain  pro- 
"  duced  by  this  system  [the  system  of  Hobbes,  Bentham,  and 
"Austin],  even  in  an  earlier  stage,  may  be  found  in 
"  Hobbes.  In  his  *  Dialogue  of  the  Common  Laws,'  he  argues 
"  for  a  fusion  of  law  and  equity,  a  registration  of  titles  to 
"  land,  and  a  systematic  penal  code,  —  three  measures  which 
we  are  on  the  eve  of  seeing  carried  out  at  this  moment." ' 

1  These  passages  are  taken  from  "  The  Laws  and  Jurisprudence  of 
England  and  America,"  1894,  being  lectures  delivered  at  Yale  Univer- 
sity; (Boston:  Little,  Brown,  &  Co.),  Lecture  XII,  pp.  316-347;  the 
author  has  revised  them  for  this  Collection. 

'Member  of  the  New  York  Bar.  M.  D.  Iowa  University;  admitted 
to  the  Iowa  Bar,  1852;  judge  of  the  seventh  judicial  circuit  of  Iowa, 
1858-1863;  judge  of  the  Supreme  Court  of  Iowa,  1863-1869;  judge  of 
the  United  States  Circuit  Court  for  the  eighth  judicial  district,  1869- 
1879;  professor  of  law  in  Columbia  University,  1879-1882;  former  Presi- 
dent of  the  American  Bar  Association. 

Other  Publications:  Law  of  Municipal  Corporations,  1872;  Law  of 
Removal  of  Causes  from  State  to  Federal  Courts,  1877;  Law  of  Munic- 
ipal Bonds,  1876;  Life,  Character,  and  Judicial  Services  of  Chief  Justice 
Marshall. 

*  Sir  James  FitzJames  Stephen,  "  History  of  Criminal  Law  of  Eng- 
land," London,  1883,  vol.  ii.,  chap,  xxi.,  p.  216. 

*  Early    History   of    Institutions,    Lecture   XIII.     Others    also,   well 

492 


15.     DILLON:   INFLUENCE   OF   BENTHAM   493 

Opposite  views  are  entertained  by  others.  It  is  worth  while, 
therefore,  to  essay  to  define  Bentham's  place  in  the  history 
of  our  law,  and  to  attempt  an  estimate  of  the  character 
and  influence  of  his  writings ;  and  such  is  the  purpose  of 
this  hour.  Bentham's  fertile  and  active  mind  embraced  in 
the  scope  of  its  operations  many  other  subjects  than  those  of 
law  and  legislation,  such  as  ethics,  political  economy,  polit- 
ical reform,  and  even  practical  politics.  Nevertheless,  his 
principal  attention  was  given  to  the  English  law  and  to  the 
mode  by  which  its  improvement  could  best  be  effected;  and 
this  lecture  will  be  restricted  to  his  writings  and  labors  con- 
cerning English  law  and  the  method  of  reforming  or 
amending  it. 

It  is  essential  to  a  correct  view  of  the  character  and 
value  of  Bentham's  labors  to  bear  in  mind  the  period  of 
time  covered  thereby,  and  also  the  condition  of  the  English 
law  especially  as  it  existed  when  his  efforts  for  its  improve- 
ment were  begun.1  Jeremy  Bentham  was  born  in  London  in 
1748.  In  1763,  at  the  early  age  of  sixteen,  he  was  graduated 
with  honors  at  Oxford.  He  was  in  due  time  called  to  the 
English  bar.  His  first  work,  the  Fragment  on  Government, 

qualified  to  judge,  have  assigned  to  Bentham  a  place  in  the  foremost 
rank  of  men  of  extraordinary  intellectual  endowments.  I  subjoin  an 
extract  giving  Macaulay's  judgment.  He  is  by  no  means  a  partial 
witness:  he  was  a  Whig  of  the  Whigs;  Bentham,  a  Radical  of  the 
Radicals.  If  there  was  anything  that  a  Whig  hated  more  than  a  Tory, 
it  was  a  Radical.  Macaulay  had  in  Bentham's  lifetime  attacked  with 
fierceness  and  rancor  the  Benthamic  notions  of  politics.  Yet  within 
a  few  months  after  the  death  of  Bentham,  in  reviewing  (July,  1832) 
Dumont's  "  Mirabeau,"  Macaulay  thus  expresses  his  opinion  of  Ben- 
tham's character  and  labors:  "Of  Mr.  Bentham,"  he  says,  "we  would 
at  all  times  speak  with  the  reverence  which  is  due  to  a  great  original 
thinker  and  to  a  sincere  and  ardent  friend  of  the  human  race.  In 
some  of  the  highest  departments  in  which  the  human  intellect  can  exert 
itself  he  has  not  left  his  equal  or  his  second  behind  him.  From  his 
contemporaries  he  has  had,  according  to  the  usual  lot,  more  or  less 
than  justice.  He  has  had  blind  flatterers  and  blind  detractors,  —  flat- 
terers who  could  see  nothing  but  perfection  in  his  style;  detractors 
who  could  see  nothing  but  nonsense  in  his  matter.  He  will  now  have 
his  judges.  Posterity  will  pronounce  its  calm  and  impartial  decision; 
and  that  decision  will,  we  firmly  believe,  place  in  the  same  rank  with 
Galileo  and  with  Locke  the  man  who  found  jurisprudence  a  gibberish 
and  left  it  a  science."  (A  general  truth,  rather  too  strongly  expressed.) 
See  below  for  opinions  of  Brougham  and  others  concerning  Bentham's 
writings  and  labors. 
1  See  ante  Lecture  XI. 


494        IV.     THE    NINETEENTH    CENTURY 

being  a  criticism  on  a  portion  of  Blackstone's  Commentaries, 
was  published  (anonymously)  in  1776;  his  attack  on  Usury 
Laws  in  1787;  his  Panopticon  in  1791;  his  protest  against 
Law  Taxes  in  1796;  his  great  work  (Dumont's  Edition,  in 
Paris)  on  Legislation,  Civil  and  Criminal,  in  1802;  on 
Codification  in  1817;  on  Rewards  and  Punishments  (Du- 
mont's Edition)  in  1818;  on  Judicial  Evidence,  in  Paris,  in 
1823,  English  translation  thereof  in  1825,  and  from  original 
English  manuscripts,  edited  by  John  Stuart  Mill,  in  1827. 
I  omit  in  this  enumeration,  as  not  essential  to  my  present 
purpose,  some  minor  works  concerning  law  or  legislation, 
and  many  important  writings  relating  to  education,  prison 
discipline,  political  reforms,  morals,  and  kindred  subjects. 

Bentham  was,  broadly  speaking,  contemporary  with  what 
may  be  styled  the  legal  reign  of  Eldon.  Tke  common  law 
in  its  substance  and  procedure  was  by  everybody  in  England 
regarded  with  a  veneration  superstitious  to  the  verge  of 
idolatry.  It  was  declared,  and  generally  believed  to  be,  "  the 
perfection  of  reason."  Lord  Eldon  and  the  Court  of  Chan- 
cery, with  its  suitorcide  delays,  "  pressed  heavily  on  man- 
kind." Imprisonment  for  debt,  and  distress  for  rent  with 
all  its  harsh  and  oppressive  incidents,  were  in  unabated  force. 
The  criminal  law,  defective  and  excessively  technical,  abound- 
ing with  capricious  and  cruel  punishments,  and  which  de- 
nounced the  penalty  of  death  on  about  two  hundred  offences, 
remained  in  a  state  which  no  one  any  longer  hesitates  to 
pronounce  outrageous  and  shocking.1  It  was  on  this  system 
that  Bentham,  when  he  was  under  thirty  years  of  age, 
solitary  and  alone,  commenced  the  attack  which  he  inces- 
santly continued  until  his  death  in  1832,  at  the  age  of 
eighty-four.  He  was  a  multiform  man  ;  but  it  is  as  a  law  re- 
former that  he  stands  the  most  conspicuous  and  pre-eminent. 
He  had  all  the  personal  qualities  of  a  reformer,  —  deep- 
hearted  sincerity,  unbounded  faith  in  his  own  powers  and 
self-sufficiency,  unwearied  zeal,  and  dauntless  moral  courage.2 

One  who  should  not  bear  in  mind  the  peculiar  aversion  of 
the  English  people  to  innovation,  the  inveterate  conservatism 
of  the  bar,  and  the  awe  and  reverence  with  which  they  re- 
xSee  post  Lecture  XITI.  «See  ante  Lecture  VI.,  p.  180. 


15.     DILLON:  INFLUENCE   OF   BENTHAM   495 

garded  the  existing  system,  might  suppose  that  the  work  of 
amendment  would  readily  follow  when  the  defects  were 
pointed  out.  But  Bentham's  voice  for  nearly  fifty  years,  so 
far  as  England  was  concerned,  was  like  that  of  one  crying 
in  the  wilderness.  Parliament  did  not  heed  it;  the  bar  did 
not  heed  it;  nobody  heeded  it.  For  quite  twenty-five  years 
he  seems  to  have  had  no.  following  beyond  Mill,  senior,  and 
a  few  other  personal  friends.  Happily  for  him  he  had  a 
competence  and  was  able  to  give  his  days  and  nights  to  the 
work  to  which  he  had  resolved  to  consecrate  his  life.  Hap- 
pily, perhaps,  also,  he  had  no  domestic  cares  or  distractions, 
being  without  wife  or  children.  Bowring  preserves  an  af- 
fecting letter  from  which  it  appears  that  at  one  time  in  his 
earlier  life  a  lady  had  engaged  his  affections  and  rejected 
his  proposals.  In  a  letter  written  long,  long  years  after- 
wards to  the  lady  herself,  the  Recluse  says :  "  I  am  alive, 
"  more  than  two  months  advanced  in  my  eightieth  year,  — 
"  more  lively  than  when  you  presented  me  in  ceremony 
"  with  the  flower  in  Green  Lane.  Since  that  day  not  a 
"  single  one  has  passed  in  which  you  have  not  engrossed 
"  more  of  my  thoughts  than  I  could  have  wished."  He 
concludes:  "I  have  a  ring  with  some  snow-white  hair  in 
"  it  and  my  profile,  which  everybody  says  is  like ;  at  my 
"  death  you  will  have  such  another ;  "  and  then  playfully, 
perhaps  pathetically,  adds,  "  Should  you  come  to  want,  it 
"  will  be  worth  a  good  sovereign  to  you." 

There  is  in  this  a  genuine  touch  of  nature!  Alike  in 
peasant,  prince,  poet,  and  philosopher,  the  human  heart,  once 
truly  touched  by  love,  becomes  thence  like  the  ocean,  —  rest- 
less and  insurgent  evermore.  Amid  all  his  engrossing  pur- 
suits, in  which  he  wholly  shut  himself  out  from  society,  and 
indeed  from  every  person  but  a  few  friends  whom  he  would 
occasionally  meet  when  the  toil  of  the  day  was  over,  the 
vision  and  the  memory  of  the  giver  of  the  flower  in  Green 
Lane,  pushing  aside  for  the  while  Codes,  Panopticons, 
Chrestomathias,  Pannomions,  and  all  such,  were,  he  con- 
fesses, present  to  him  every  day.  But  although  "  along  the 
"  plains,  where  Passionate  Discord  rears  eternal  Babel,  the 
"holy  stream  of  wedded  happiness  glides  on,"  it  glided 


496        IV.     THE   NINETEENTH   CENTURY 

not  on  for  him,  but  passed  him  by  irreversibly.  One  so 
thoroughly  absorbed  in  work  which  he  regarded  as  so  press- 
ing and  so  important  to  the  world,  would  have  made,  it  is 
to  be  feared,  a  poor  husband,  just  in  proportion  as  he  was 
a  devoted  philosopher.  Doubtless  she  judged  wisely.  It  was 
well  for  her,  and  perhaps  well  for  him,  that  he  never  saluted 
the  woman  who  gave  him  the  flower  in  Green  Lane  with  the 
tender  and  sacred  name  of  wife. 

In  forming  a  judgment  of  Bentham's  work  and  of  the  way 
he  did  it  and  of  the  efficiency  of  that  way,  it  is  almost 
as  essential  to  see  how  he  regarded  the  English  law  as  it 
is  to  inquire  precisely  how  far  his  opinions  were  correct. 
Bentham's  voluminous  writings  leave  no  doubt  as  to  his 
views  concerning  English  law.  There  was"  no  health  in  it. 
Admitting,  as  he  did,  that  the  legislative  enactments  and  the 
reports  of  adjudged  cases  contained  more  valuable  materials 
for  the  construction  of  a  system  of  laws  than  any  other 
nation  in  the  world  possessed,1  he  yet  maintained  that  the 
existing  law,  so  far  from  being  the  perfection  of  human 
reason  or  the  product  of  matured  experience,  was  (to  use 
his  own  language)  but  "  a  fathomless  and  boundless  chaos, 
"  made  up  of  fiction,  tautology,  technicality,  and  inconsis- 
"  tency,  and  the  administrative  part  of  it  a  system  of  exquis- 
"  itely  contrived  chicanery,  which  maximizes  delay  and  denial 
"  of  justice."  Thus  viewing  it,  he  saw  no  remedy  but  its 
overthrow  and  destruction  as  a  system,  and  rebuilding  it 
anew,  using  old  materials  as  far  as  they  were  useful  and  no 
farther.  He  regarded  the  whole  system,  as  I  have  often 
thought,  with  much  the  same  feeling  that  the  French  people 
contemporaneously  looked  upon  the  Bastille,  as  a  monument 
of  feudalism,  oppression,  and  injustice,  fit  only  to  be  de- 
stroyed. Blackstone,  on  the  other  hand,  viewing  the  system 
with  the  optimistic  eyes  of  the  age  in  which  he  wrote,  com- 
pared it,  in  his  inimitable  style,  to  "  an  old  Gothic  castle, 
"  erected  in  the  days  of  chivalry,  but  fitted  up  for  a  modern 
"  inhabitant.  The  moated  ramparts,  the  embattled  towers, 
*'  and  the  trophied  halls  are  magnificent  and  venerable,  but 
"  useless,  and  therefore  neglected.  The  inferior  apart- 
»See  ante  Lecture  VI.,  p.  174;  Lecture  X.,  p.  270. 


15.    DILLON:  INFLUENCE  OF  BENTHAM  497 

"  ments,  now  accommodated  to  daily  use,  are  cheerful  and 
"  commodious,  though  their  approaches  may  be  winding  and 
"  difficult."  1  What  could  be  more  charming,  what  more  de- 
sirable! All  the  interest  and  grandeur  that  attach  to  a 
structure  at  once  imposing,  venerable,  and  historic,  combined 
with  the  convenience  that  results  from  its  being  already 
fitted  to  the  amplest  modern  uses,  —  the  only  defect  being, 
if,  indeed,  it  is  such,  that  the  approaches  may  be  (he  does 
not  feel  quite  sure  that  they  are)  somewhat  winding  and 
difficult. 

Bentham's  claims  upon  our  regard  will  not  be  duly  valued 
unless  we  keep  ever  in  mind  the  difficulties  which  he  was 
called  upon  to  face.  He  stood  alone.  For  more  than  twenty- 
five  years  he  stood  absolutely  alone.  But  like  Milton  (whose 
London  house  it  was  Bentham's  pride  to  own,  although  it 
was  one  of  his  peculiarities  that  he  utterly  disesteemed 
poetry),  —  like  Milton  in  his  blindness,  through  all  neglect 
and  discouragements,  Bentham  "  bated  not  a  jot  of  heart 
"  or  hope,  but  still  bore  up  and  steered  right  onward." 

I  have  not  the  time,  if  I  had  the  power,  adequately  to 
present  a  picture  of  the  obstacles  Bentham  met  with.  And 
yet  I  must  not  pass  these  entirely  over,  as  they  are  the 
background  of  any  portraiture  of  the  man  and  his  work. 
There  was  the  traditional,  constitutional,  ingrained  aversion 
of  the  English  people  to  innovation,  combined  with  their 
idolatrous  regard  for  the  existing  order  of  things.2  It  is 
worth  while  to  illustrate  this.  Burke  was  undoubtedly  the 
most  enlightened  statesman  of  his  age,  • —  one  of  the  pro- 
foundest  political  thinkers  and  philosophers  of  any  age.  In 
one  of  his  greatest  speeches3  he  thus  expressed  in  his  felici- 
tous way  the  traditional  and  habitual  regard  of  the  English 
mind  for  the  established  Constitution  and  for  ancient  acts 
of  Parliament :  — 

"  I  do  not  dare  to  rub  off  a  particle  of  the  venerable 
"  rust  that  rather  adorns  and  preserves  than  destroys  the 
"  metal.  It  would  be  a  profanation  to  touch  with  a  tool 

*3  Black.  Com.,  268;  2  Dillon,  "Municipal  Corporations"  (4th  ed.) 
§  934,  a,  and  note. 

*  See  ante  Lecture  XI.         'Conciliation  with  America,  1775. 


498        IV.     THE   NINETEENTH   CENTURY 

"  the  stones.  I  would  not  violate  with  modern  polish  the 
"  ingenuous  and  noble  roughness  of  these  truly  constitu- 
"  tional  materials.  Tampering  is  the  odious  vice  of  restless 
"  and  unstable  minds.  I  put  my  foot  in  the  tracks  of  our 
"  forefathers,  where  I  can  neither  wander  nor  stumble. 
"  What  the  law  has  said,  I  say.  In  all  things  else  I  am 
"  silent.  I  have  no  organ  but  for  her  words.  If  this  be 
"  not  ingenious,  I  am  sure  it  is  safe." 

Again,  in  1791,  speaking  of  the  English  Constitution, 
Burke  says :  —  % 

"We  ought  to  understand  this  admired  Constitution  (of 
"  England)  according  to  our  measure,  combining  admiration 
"  with  knowledge  if  we  can,  and  to  venerate  even  where  we 
"  are  not  able  presently  to  comprehend."  J 

Than  this  nothing  can  be  more  opposed  to  Bentham's 
mode  of  thought,  since  he  would  take  nothing  for  granted, 
and  would  not,  he  said,  admit  murder  or  arson  or  any  other 
act  to  be  wrong  unless  it  could  be  shown  by  reasoning  to 
be  so.  I  find  in  Henry  Crabb  Robinson's  Diary  2  another 
contemporary  illustration  of  the  difficulty  of  attacking 
things  established,  so  pertinent  that  it  will  excuse  its 
irreverence.  He  relates  that  in  1788  a  deputation  of  distin- 
guished men  waited  on  Lord  Chancellor  Thurlow  to  secure 
his  support  in  their  attempt  to  obtain  the  repeal  of  the  Cor- 
poration and  Test  Act.  The  Chancellor  received  them  very 
civilly,  and  then  said :  "  Gentlemen,  I'm  against  you,  by 
"  G — .  I  am  for  the  Established  Church,  d —  me !  Not 
"  that  I  have  any  more  regard  for  the  Established  Church 
"  than  for  any  other  church,  but  because  it  is  established. 
"  And  if  you  can  get  your  d — d  religion  established,  I'll  be 
"  for  that  too !  "  This  national  peculiarity,  as  well  as  the 
natural  conservatism  of  the  bar,  had  been  greatly  intensified 
by  the  French  Revolution.  As  late  as  1808  Sir  Samuel 
Romilly,  speaking  of  his  own  parliamentary  labors  and  dis- 
couraging experience,  says :  "  If  any  person  be  desirous  of 
"  having  an  adequate  idea  of  the  mischievous  effects  which 

1  Appeal  from  the  New  to  the  Old  Whigs.     Burke's  Works,  vol.  iv., 
p.  213  (Little,  Brown,  &  Co.'s  Ed.). 
.  'Vol.  i.,  chap,  xv.,  American  Ed.,  p.  243. 


15.     DILLON:  INFLUENCE   OF   BENTHAM   499 

"  have  been  produced  in  this  country  by  the  French  Revolu- 
"  tion  and  all  its  attendant  horrors,  he  should  attempt  some 
"  legislative  reform  on  humane  and  liberal  principles.  He 
"  will  then  find,  not  only  what  a  stupid  dread  of  innovation, 
"  but  what  a  savage  spirit  it  has  infused  into  the  minds  of 
"  many  of  his  countrymen."  * 

Eldon'  was  for  a  quarter  of  a  century  Lord  Chancellor. 
It  is  certain  that  he  never  originated  a  reform  act;  and 
if  he  ever  favored  an  act  which  could  be  fairly  said  to  have 
been  intended  to  amend  the  law,  I  do  not  recall  it.  It  was 
difficult  and  almost  impossible  to  pass  any  act  which  Eldon 
disapproved.  He  considered  the  existing  system  as  perfect ; 
or  if  not,  that  if  the  least  innovation  were  favored  or  al- 
lowed no  one  could  tell  where  it  would  stop,  and  therefore 
the  true  course  was  to  destroy  all  innovation  in  the  egg. 
He  was  "  accused  by  Bentham  of  nipping  in  the  bud  the 
"  spread  of  improvement  over  the  habitable  globe." 2  And 
yet  I  love  old  Eldon.  He  could  not  help  his  impenetrable 
and  incorrigible  conservatism.  He  was  sincere  and  immova- 
ble in  his  sincerity.  If  he  was  true  to  his  party  and  "  never 
ratted,"  he  was  also  true  to  his  heart  and  conscience  and 
sense  of  duty.  No  breath  of  suspicion  ever  rested  upon  him 
or  the  absolute  purity  of  his  court.  What  a  great  advance 
had  been  made  from  the  time  of  Bacon  to  the  time  of 
Eldon.  Eldon  had,  moreover,  the  qualities  of  a  great  judge. 
He  loved  right.  He  hated  wrong.  He  appreciated  argu- 
ments of  counsel  and  freely  heard  them.  He  was  deeply 
learned  in  his  profession.  His  judgment  was  sure-footed. 
His  love  of  justice  was  so  great,  his  sense  of  the  fearful 
responsibility  attaching  to  the  exercise  of  judicial  power  so 

1 "  Life  of  Sir  Samuel  Romilly,"  edited  by  his  sons,  vol.  i.,  Diary, 
June,  1808.  See  also  his  beautifully  written  Letters  to  C.,  letter  iii., 
September,  1807,  in  same  volume,  3d  ed.,  London,  1842,  p.  537. 

2  Townsend,  "  Lives  of  Twelve  Eminent  Judges,"  vol.  ii.,  chap,  x.,  p. 
455,  London,  1846.  Bowring  says  that  Bentham  hated  Eldon  as  much 
as  it  was  possible  to  his  benevolent  nature  to  hate,  —  considered  him  the 
mightiest  and  most  mischievous  T>f  all  the  opponents  of  law  reform ;  and 
he  calls  him,  in  another  place,  the  Lord  of  Doubts.  Defective  as  the 
laws  were,  they  were  doubtless  in  a  vastly  better  condition  than  they 
would  have  been  if  Bentham  could  have  subjected  them  to  the  full  op- 
eration of  his  radical,  and  to  a  large  extent  impracticable  views,  which, 
however,  were  never  favored  in  their  full  scope  and  details  by  such  con- 
servative reformers  as  Brougham,  Romilly,  and  Bickersteth. 


500        IV.     THE   NINETEENTH   CENTURY 

keen,  that  he  habitually  hesitated  and  doubted;  but  his 
doubts  and  hesitations  all  had  their  origin  in  the  dread  of 
doing  injustice,  and  a  noble  anxiety  to  know  and  to  do  the 
right.  If  he  vigorously  resisted  amendment  or  change  in 
our  law,  he  as  vigorously  protected  and  conserved  existing 
excellences  and  merits.  Again  I  say  I  love  old  Eldon! 
With  all  his  ultra-conservatism  and  dubitations,  — *his  only 
defects,  —  I  love  his  sturdy,  genuine,  honest  nature.  I  have 
said  this  that  you  might  not  conceive  an  undue  bias  against 
Eldon  from  what  Sydney  Smith,  Bentham  and  other  Whigs 
have  said  of  him  and  his  court. 

The  libel  laws  even  were  in  Bentham's  way.  Not  to  men- 
tion other  instances,  as  late  as  1811  there  was  difficulty  in 
obtaining  a  publisher  for  the  "  Introduction  to  the  Rationale 
of  Evidence."  More  than  one  bookseller  declined,  giving 
as  a  reason  that  the  book  was  libellous.  The  "  Elements  of 
the  Art  of  Packing,"  which  lay  six  years  printed  but 
unpublished,  had  alarmed  the  "  trade,"  and  it  never  was 
fully  published  until  after  Bentham's  death.  But  Bentham 
kept  right  on.  At  length  he  began  to  attract  the  attention 
of  a  few  gifted  minds.  One  of  the  earliest  of  these  was  Sir 
Samuel  Romilly,  who  of  all  English  lawyers  is,  as  I  think, 
the  one  that  nearest  approaches  a  perfect  model.1 

1  Romilly  was  the  means  of  rendering  Bentham  what  turned  out  to 
be  a  most  signal  service.  About  1788,  when  Bentham  was  forty  years  of 
age,  Romilly  sent  to  Genevese  Dumont  some  of  Bentham's  writings. 
They  greatly  impressed  this  gifted  man  with  their  originality  and  value. 
Dumont  gave  a  large  portion  of  his  life  to  the  redaction  and  translating 
into  French  some  of  the  most  important  of  Bentham's  works.  But  this 
required  years.  On  April  5,  1791,  Romilly  writes  to  Dumont:  "Ben- 
tham leads  the  same  kind  of  life  as  usual  at  Hendon,  —  seeing  nobody, 
reading  nothing,  and  writing  books  which  nobody  reads."  In  1802  Du- 
mont's  French  edition  of  Bentham's  treatise  on  "  Legislation  Civil  and 
Criminal "  appeared,  and  was  translated  into  Spanish,  Russian  and 
Italian;  in  1811  "Rewards  and  Punishments,"  and  in  1823  "Judicial 
Evidence,"  thus  treated  and  translated  by  Dumont,  were  published  in 
Paris.  This  gave  Bentham  a  European  reputation,  and  quickened  his 
tardy  appreciation  at  home.  In  the  history  of  letters  there  is  nothing 
more  remarkable  than  the  relation  between  Dumont  and  Bentham.  Ma- 
caulay's  account  of  the  services  rendered  by  Dumont  is  as  interesting 
as  it  is,  generally  speaking,  accurate.  Of  the  character  and  value  of 
Dumont's  labors  the  great  reviewer  remarks:  — 

"  They  can  be  fully  appreciated  only  by  those  who  have  studied  Mr. 
Bentham's  works,  both  in  their  rude  and  in  their  finished  state.  The 
difference,  both  for  show  and  for  use,  is  as  great  as  the  difference  be- 
tween a  lump  of  golden  ore  and  a  rouleau  of  sovereigns  fresh  from  the 


16.     DILLON:  INFLUENCE   OF   BENTHAM   501 

Romilly  excepted,  no  persons  in  England  of  distinction 
or  official  influence  acknowledged  adhesion  to  Bentham's  doc- 
trines until  the  early  part  of  the  present  century.  Among 
the  most  eminent  of  these  was  Mill,  senior,  the  father  of 
the  still  more  eminent  John  Stuart  Mill.  Mill,  the  father, 
aftd  his  family  were  for  years  members  of  Bentham's  house- 
hold ;  and  Mill  was  one  of  the  ablest  exponents  and  advocates 
of  Bentham's  doctrines.  Afterwards  came  Bickersteth  (sub- 
sequently Lord  Langdale,  Master  of  the  Rolls),  who  was  the 
well-beloved  disciple ;  for  not  long  before  the  master's  death 
he  received  his  benediction  in  these  words :  "  Of  all  my 
"  friends,  Bickersteth  was  the  most  cordial  to  law  reform 
"  to  its  utmost  extent."  Then  came  Brougham  and  Sir 
James  Mackintosh,  and  at  a  later  period  others.  Romilly, 
Langdale,  Brougham,  and  Mackintosh  each  held  seats  in 
Parliament;  and  their  efforts  for  the  reform  of  the  laws, 
civil  and  criminal,  and  the  slow,  tedious,  and  piecemeal 
process  by  which  such  reforms  were  accomplished,  are  known 
to  history,  and  need  not  be  related  here,  even  if  time  there 

mint.  .  .  .  Never  was  there  a  literary  partnership  so  fortunate  as  that 
of  Mr.  Bentham  and  M.  Dumont.  The  raw  material  which  Mr.  Ben- 
tham  furnished  was  most  precious;  but  it  was  unmarketable.  He  was, 
assuredly,  at  once  a  great  logician  and  a  great  rhetorician.  But  the 
effect  of  his  logic  was  injured  by  a  vicious  arrangement,  and  the  effect 
of  his  rhetoric  by  a  vicious  style.  His  mind  was  vigorous,  comprehen- 
sive, subtle,  fertile  of  argument,  fertile  of  illustrations.  But  he  spoke 
in  an  unknown  tongue;  and,  that  the  congregation  might  be  edified,  it 
was  necessary  that  some  brother  having  the  gift  of  interpretation  should 
expound  the  invaluable  jargon.  His  oracles  were  of  high  import;  but 
they  were  traced  on  leaves  and  flung  loose  to  the  wind.  .  .  .  M.  Dumont 
was  admirably  qualified  to  supply  what  was  wanting  in  Mr.  Bentham. 
In  the  qualities  in  which  the  French  writers  surpass  those  of  all  other 
nations  —  neatness,  clearness,  precision,  condensation  —  he  surpassed  all 
French  writers.  If  M.  Dumont  had  never  been  born,  Mr.  Bentham 
would  still  have  been  a  very  great  man;  but  he  would  have  been  great 
to  himself  alone.  The  fertility  of  his  mind  would  have  resembled  the 
fertility  of  those  vast  American  wildernesses  in  which  blossoms  and  de- 
cays a  rich  but  unprofitable  vegetation,  '  wherewith  the  reaper  filleth  not 
his  hand,  neither  he  that  bindeth  up  the  sheaves  his  bosom,'  .  .  .  Many 
persons  have  attempted  to  interpret  between  this  powerful  mind  and  the 
public.  But  in  our  opinion  M.  Dumont  alone  has  succeeded.  It  is  re- 
markable that  in  foreign  countries,  where  Mr.  Bentham's  works  are 
known  solely  through  the  medium  of  the  French  version,  his  merit  is 
almost  universally  acknowledged.  Indeed,  what  was  said  of  Bacon's 
philosophy  may  be  said  of  Bentham's.  It  was  in  little  repute  among 
us  till  judgments  came  in  its  favor  from  beyond  sea,  and  convinced  us, 
to  our  shame,  that  we  had  been  abusing  and  laughing  at-  one  of  the 
greatest  men  of  the  age."  Essay  on  Mirabeau,  July,  1832. 


502        IV.     THE    NINETEENTH    CENTURY 

were.     Lord  Brougham  thus  excellently  states  the  grounds 
of  Bentham's  title  to  distinction  and  to  our  regard: 

"  The  age  of  law  reform  and  the  age  of  Jeremy  Bentham 
"  are  one  and  the  same.  No  one  before  him  had  ever 
"  seriously  thought  of  exposing  the  defects  in  our  English 
"  system  of  jurisprudence.  He  it  was  who  first  made  the 
"  mighty  step  of  trying  the  whole  provisions  of  our  juris- 
"  prudence  by  the  test  of  expediency,  fearlessly  examining 
"  how  far  each  part  was  connected  with  the  rest,  and 
"  with  a  yet  more  undaunted  courage  inquiring  how  far 
"  even  its  most  consistent  and  symmetrical  arrangements 
"  were  framed  according  to  the  principles  which  should 
"  pervade  a  code  of  laws,  their  adaptation  to  the  circum- 
"  stances  of  society,  to  the  wants  of  men,  and  to  the  promo- 
"  tion  of  human  happiness.  Not  only  was  he  pre-eminently 
"  original  among  the  lawyers  and  legal  philosophers  of  his 
"  own  country ;  he  might  be  said  to  be  the  first  legal  phil- 
"  osopher  who  had  appeared  in  the  world.  None  of  the  great 
"  men  before  him  had  attempted  to  reduce  the  whole  system 
"  of  jurisprudence  under  the  dominion  of  fixed  and  general 
"  rules ;  none  ever  before  Mr.  Bentham  took  in  the  whole 
"  departments  of  legislation ;  none  before  him  can  be  said 
"  to  have  treated  it  as  a  science,  and  by  so  treating  made 
"  it  one.  This  is  his  pre-eminent  distinction.  To  this  praise 
"  he  is  justly  entitled ;  and  it  is  as  proud  a  title  to  fame  as 
"  any  philosopher  ever  possessed."  1  • 


1  Lord  Brougham's  Speeches,  Edinburgh,  1838,  vol.  ii.,  p.  288,  Black's 
Edition.  Brougham  and  Bentham  were  well  acquainted.  In  a  sense 
Brougham  was  one  of  Bentham's  disciples.  Both  aspired  to  be  law  re- 
formers. Indeed,  Brougham's  most  useful  labors  in  Parliament  were 
directed  towards  law  reform.  There  were,  however,  radical  differences 
of  opinion  between  Bentham  and  Brougham  as  to  the  best  method  of 
effecting  the  desired  improvement.  These  differences  naturally  arose 
out  of  the  difference  in  the  situation  and  surroundings  of  the  two  men. 
Bentham,  though  he  was  regularly  bred  to  the  law  and  called  to  the  bar, 
never  pursued  the  profession.  Bentham  thus  summarized  his  own 
career  as  a  practising  lawyer:  "  I  never  pleaded  in  public.  On  my  be- 
ing called  to  the  bar,  I  found  a  cause  or  two  at  nurse  for  me.  My  first 
thought  was  how  to  put  them  to  death;  and  the  endeavors  were  not, 
I  believe,  altogether  without  success.  Not  long  after  a  case  was  brought 
to  me  for  my  opinion.  I  ransacked  all  the  codes.  My  opinion  was  right 
according  to  the  codes;  but  it  was  wrong  according  to  a  manuscript 
unseen  by  me  and  inaccessible  to  me,  —  a  manuscript  containing  the  re- 


15.     DILLON:   INFLUENCE   OF   BENTHAM   503 

Bowring  once  remarked  to  Talleyrand,  "  Of  all  modern 
"  writers,  Bentham  was  the  one  from  which  most  had  been 
"  stolen,  and  stolen  without  acknowledgement."  «  True,"  re- 
plied Talleyrand ;  "  et  pille  de  tout  le  monde,  il  est  ton  jours 
"  riche,"  —  "  and  robbed  by  everybody,  he  is  always  rich." 

I  have  thus  sought  to  give  a  notion  of  Bentham's  intel- 
lectual qualities,  of  his  times,  and  of  the  general  character 
of  his  writings  respecting  law  and  legislation.  This  has 
been  necessarily  an  outline  view  only.  It  remains  to  attempt, 
by  way  of  summing  up,  a  critical  estimate  of  the  value  of  his 
labors,  and  the  nature  and  extent  of  the  actual  influence 
upon  our  laws  and  jurisprudence  of  his  doctrines  and  writ- 
ings. 

If  we  are  to  form  a  sound  judgment  on  this  subject,  we 
must  not  mistake  the  point  of  view  from  which  to  look  at 
him.  To  be  truly  appreciated,  Bentham  must,  as  I  have 
already  said,  be  regarded  primarily  and  essentially  as  a  law 
reformer  generally,  and  specially  as  a  reformer  of  the  then 
existing  law  of  England.  He  was  bold,  courageous,  and 
original.  He  was  the  first  to  expose  its  defects  and  to  sug- 


port  of  I  know  not  what  opinion,  said  to  have  been  delivered  before  I 
was  born,  and  locked  up,  as  usual,  for  the  purpose  of  being  kept  back 
or  produced  according  as  occasion  served." 

Bentham's  solitary  habits  made  him  unfamiliar  with  practical  life, 
and  unable  clearly  to  distinguish  the  attainable  from  the  unattainable. 
Brougham,  on  the  other  hand,  was  a  man  of  affairs,  acquainted  with  the 
world  of  men,  with  the  world  of  lawyers,  with  the  temper  of  Parliament, 
and  able  to  form  a  practical  judgment  concerning  matters  of  legislation. 
Though  a  man  of  liberal  views,  and  with  the  courage  boldly  to  main- 
tain them,  he  had  in  the  matter  of  law  reform  not  a  little  of  the  usual 
conservatism  of  the  lawyer  and  the  prudence  and  tact  of  the  legislator. 
Bowring  records  that  in  anticipation  of  Brougham's  great  speech  on 
Law  Reform,  Bentham  said:  "Insincere  as  Brougham  is,  it  is  always 
worth  my  while  to  bestow  a  day  on  him.  I  shall  try  to  subdue  him  and 
make  something  of  him.  I  shall  see  whether  he  has  any  curiosity  to 
assist  in  tearing  the  established  system  of  procedure  to  rags  and  tat- 
ters." This  was  Bentham's  notion  of  the  heroic,  the  destructive  nature 
of  the  remedy  required.  .Brougham's  heralded  and  famous  speech  on  the 
Present  State  of  the  Law,  and  which  he  entitled  "  Law  Reform,"  was 
delivered  on  the  seventh  day  of  February,  1828;  but  the  remedy  pro- 
posed by  him  was  to  preserve  the  garment  and  patch  it  up,  instead  of 
"  tearing  it  to  rags  and  tatters."  Two  days  afterwards  Bentham  thus 
records  his  disgust  and  disappointment:  "Mr.  Brougham's  mountain  is 
delivered,  and  behold !  a  mouse.  The  wisdom  of  the  reformer  could 
not  overcome  the  craft  of  the  lawyer.  Mr.  Brougham,  after  all,  is  not 
the  man  to  set  up  a  simple,  natural,  and  rational  administration  of 


504        IV.     THE   NINETEENTH   CENTURY 

gest  the  remedies  required.  He  destroyed  with  his  own  force 
the  professional  and  general  superstition  that  the  law  was 
perfect,  and  by  his  labors  and  writings  he  was  the  means 
of  at  length  awakening  the  public  mind  from  its  stupor  and 
inertia  on  this  subject.  His  merits  as  a  critic  and  censor  of 
the  law  as  he  found  it  in  his  day  and  in  his  country,  it  is 
difficult  to  overvalue.  Blackstone,  the  type  of  the  profes- 
sional mind  of  his  age,  regarded  the  English  law  as  almost 
perfection  itself;  and  he  found  his  pleasurable  function  to- 
be  to  defend,  to  exalt,  to  glorify  it.1  Bentham  held  pre- 
cisely opposite  views.  To  him  the  English  law,  instead  of  a, 
model  of  excellence,  was  a  system  full  of  delays,  frauds, 
snares,  and  uncertainties;  and  the  lawyers  were  its  unthink- 
ing or  interested  defenders.  His  remedy  was  not  to  stop 
leaks  in  the  roof,  put  in  new  panes  of  glass,  and  otherwise 
repair  the  rotten  and  dilapidated  structure,  but  to  demolish 
it  and  rebuild  anew.  By  many  he  was  regarded  for  the 
greater  part  of  his  life  as  an  iconoclast,  and  by  others  as  a 
dreamer  who  labored  under  the  harmless  delusion  that  he  was 

justice  against  the  entanglements  and  technicalities  of  our  English  law 
proceedings."  I  do  not  know  that  Brougham  ever  heard  of  this  con- 
temptuous opinion,  although  of  course  he  knew  that  his  proposed  reme- 
dies utterly  failed  to  meet  Bentham's  views  of  what  the  case  demanded. 
In  1838  Brougham  edited  an  edition  of  his  own  speeches  (namely,  the 
one  above  cited,  printed  by  the  Messrs.  Black),  himself  preparing  his- 
torical introductions  to  the  various  subjects,  and  among  others  to  the 
speech  on  Law  Reform.  In  tracing  the  history  of  this  movement,  he 
gives  many  pages  to  a  consideration  of  Bentham's  personal  and  intel- 
lectual qualities,  and  to  a  critical  estimate  of  his  writings  upon  law, 
jurisprudence,  and  legislation.  Brougham  excels  in  biographical 
sketches  and  descriptions  of  this  kind,  and  this  seems  to  me  to  be  one 
of  his  best.  It  will  well  reward  full  perusal,  but  I  have  space  only  for 
the  few  sentences  given  in  the  text.  Mr.  John  Stuart  Mill  in  a  note  to 
his  article  on  Bentham  ("Dissertations  and  Discussions,"  Am.  Ed.,  vol. 
i.,  p.  417),  commends  Brougham's  view  of  Bentham,  and  explains  and 
extenuates  Bentham's  "  unreasonable  attacks  on  individuals,  and  in 
particular  on  'Lord  Brougham  on  the  subject  of  Law  Reforms;  they 
were  no  more  the  effect  of  envy  or  malice,  or  any  really  unamiable  qual- 
ity, than  the  freaks  of  a  pettish  child,  and  are  scarcely  a  fitter  sub- 
ject of  censure  or  criticism." 

The  late  eminent  law  teacher,  Professor  Theodore  W.  Dwight,  wrote 
me,  October  24,  1890,  in  regard  to  Bentham,  thus:  "I  am  astonished  at 
his  legal  genius,  revere  him  for  his  kindly  disposition  even  towards 
brutes,  am  delighted  with  his  wit  and  playful  repartee,  and  enjoy  his 
sarcasm,  of  which,  however,  he  never  made  use  except  when  the  occa- 
sion required  it." 

1  See  ante  Lecture  XI. 


15.     DILLON:   INFLUENCE   OF   BENTHAM   505 

a  benefactor  of  his  race,  while  in  reality  he  was  passing  his 
life  uselessly  in  Utopia. l 

It  does  not  essentially  detract  from  Bentham's  merits,  or 
the  regard  in  which  posterity  should  hold  him,  that  he  ex- 
aggerated, as  he  doubtless  did,  the  absurdities  and  defects 
of  the  system  that  he  assailed,  or  that  his  invectives  against 
lawyers,  who  as  a  body  supported  it  and  resisted  all  attempts 
to  reform  it,  were  extravagant  and  unjust.  All  this  may 
well  be  pardoned  to  his  honest  convictions,  to  his  lifelong 
labors  and  his  disinterested  zeal  for  the  public  good.  Nor 
does  it  essentially  detract  from  his  just  estimation  that  he  is 
an  illustration  of  Bacon's  observation  that  "  there  is  a  super- 
"  stition  in  avoiding  superstition,  when  men  think  to  do  best 
"  if  they  go  farthest  from  the  superstition  formerly  received." 
Nor  does  it  materially  diminish  his  fame  that  we  cannot  ac- 
cept all  of  his  doctrines  as  sound,  or  all  of  his  conclusions 
from  doctrines  whose  general  soundness  are  no  longer  ques- 
tioned. 

The  following  which  I  give  in  John  Stuart  Mill's  own 
words,  seems  to  me  to  set  forth  with  judicial  fairness  Ben- 
tham's chief  merits  and  the  nature  of  the  obligations  of  the 
world  to  him :  — 

"  Bentham,"  he  says,  "  is  one  of  the  great  seminal  minds 

1  Sir  Samuel  Romilly  gives  this  interesting  account  of  a  visit  which 
he  made  in  1817  to  Bentham:  — 

"  Our  last  visit  was  to  my  old  and  most  valuable  friend,  Jeremy  Ben- 
tham, at  Ford  Abbey.  The  grandeur  and  stateliness  of  the  buildings 
form  as  strange  a  contrast  to  his  philosophy,  as  the  number  and  spa- 
ciousness of  the  apartments,  the  hall,  the  chapel,  the  corridors,  and  the 
cloisters,  do  to  the  modesty  and  scantiness  of  his  domestic  establishment. 
The  society  we  found  and  left  with  him  were  Mill  and  his  family  and  a 
Mr.  Place,  —  the  Charing  Cross  radical  tailor.  We  found  Bentham  pass- 
ing his  time,  as  he  has  always  been  passing  it  since  I  have  known  him, 
—  which  is  now  more  than  thirty  years,  —  closely  applying  himself  six  or 
eight  hours  a  day  in  writing  upon  laws  and  legislation  and  in  compiling 
his  Civil  and  Criminal  Codes,  and  spending  the  remaining  hours  of 
every  day  in  reading,  or  taking  exercise  by  way  of  fitting  himself  for 
his  labors,  or,  to  use  his  own  strangely-invented  phraseology,  taking 
ante-j  entacular  and  post-prandial  walks  to  prepare  himself  for  his  task 
of  codification.  There  is  something  burlesque  enough  in  this  language; 
but  it  is  impossible  to  know  Bentham,  and  to  have  witnessed  his  benevo- 
lence, his  disinterestedness,  and  the  zeal  with  which  he  has  devoted  his 
whole  life  to  the  service  of  his  fellow-creatures,  without  admiring  and 
revering  him." 

Life  of  Sir  Samuel  Romilly,  edited  by  his  sons,  vol.  ii.,  p.  473  (3d 
ed.  Diary,  under  date  September,  1817). 


506        IV.     THE    NINETEENTH    CENTURY 

"  in  England  of  his  age."  "  He  is  the  teacher  of  teachers." 
"  To  him  it  was  given  to  discern  more  particularly  those 
"  truths  with  which  existing  doctrines  were  at  variance." 
"  Bentham  has  been  in  this  age  and  country  the  great  ques- 
"  tioner  of  things  established.  It  is  by  the  influence  of  the 
"  modes  of  thought  with  which  his  writings  inoculated  a  con- 
"  siderable  number  of  thinking  men,  that  the  yoke  of  author- 
ity has  been  broken,  and  innumerable  opinions,  formerly 
"  received  on  tradition  as  incontestable,  are  put  upon  their 
"  defence  and  required  to  give  an  account  of  themselves. 
"  Who,  before  Bentham,  dared  to  speak  disrespectfully,  in 
"  express  terms,  of  the  British  Constitution  or  the  English 
"  law  ?  .  .  .  Bentham^  broke  the  spell.  It  was  not  Bentham 
"  by  his  own  writings ;  it  was  Bentham  through  the  minds 
"  and  pens  which  those  writings  fed,  —  through  the  men  in 
"  more  direct  contact  with  the  world,  into  whom  his  spirit 
"  passed.  If  the  superstition  about  ancestorial  wisdom ;  if 
"  the  hardiest  innovation  is  no  longer  scouted  because  it  is 
"  an  innovation,  —  establishments  no  longer  considered 
"  sacred  because  they  are  establishments,  —  it  will  be  found 
"  that  those  who  have  accustomed  the  public  mind  to  these 
"  ideas  have  learned  them  in  Bentham's  school,  and  that  the 
"  assault  on  ancient  institutions  has  been,  and  is,  carried 
"  on  for  the  most  part  with  his  weapons." 

1  Essay  on  Bentham,  "Dissertations  and  Discussions"  (Am.  Ed.),  vol. 
i.,  pp.  355-358.  John  Stuart  Mill  in  his  Autobiography  says:  "During 
the  winter  of  1821-22,  Mr.  John  Austin,  with  whom  at  the  time  of  my 
visit  to  France  my  father  had  but  lately  become  acquainted,  kindly 
allowed  me  to  read  Roman  law  with  him.  [John  Stuart  Mill  was  then 
in  his  seventeenth  year.]  My  father,  notwithstanding  his  abhorrence  of 
the  chaos  of  barbarism  called  English  law,  had  turned  his  thoughts 
towards  the  bar  as  on  the  whole  less  ineligible  for  me  than  any  other 
profession;  and  these  readings  with  Mr.  Austin,  who  had  made  Ben- 
tham's best  ideas  his  own,  and  added  much  to  them  from  other  sources 
and  from  his  own  mind,  were  not  only  a  valuable  introduction  to  legal 
studies,  but  an  important  portion  of  general  education.  With  Mr.  Aus- 
tin I  read  Heineccius  on  the  Institutes,  his  Roman  Antiquities,  and  part 
of  his  exposition  of  the  Pandects,  to  which  was  added  a  considerable 
portion  of  Blackstone.  It  was  at  the  commencement  of  these  studies 
that  my  father,  as  a  needful  accompaniment  to  them,  put  into  my 
hands  Bentham's  principal  speculations,  as  interpreted  to  the  Continent, 
and  indeed  to  all  the  world,  by  Dumont,  in  the  '  Trait6  de  Legislation.' 
The  reading  of  this  book  was  an  epoch  in  my  life,  one  of  the  turning- 
points  in  my  mental  history"  (chap.  Hi.). 

Further  legal  education  Stuart  Mill   appears  not   to  have  received. 


15.     DILLON:   INFLUENCE   OF   BENTHAM   507 

If  time  permitted,  it  would  be  easy  to  trace  Bentham's  in- 
fluence through  other  minds,  and  in  the  way  here  pointed 
out,  in  England  and  in  this  country,1  not  only  in  modifica- 
tions and  changes  in  specific  legislation  and  in  modes  of  judi- 
cial procedure,  but  upon  existing  notions  in  respect  of  legal 
education,  the  necessity  for  and  the  methods  of  legal  reform. 
It  would  be  interesting,  for  example,  to  draw  the  parallel 
between  Bentham  and  Austin,  one  of  Bentham's  most  eminent 
disciples,  and  to  show  the  partial  reaction  of  Austin  against 

He  was  never  called  to  the  bar.  I  may  here  mention  what,  it  seems  to 
me,  is  a  remarkable  circumstance.  When  Bentham  was  seventy-seven 
years  of  age  he  committed  to  John  Stuart  Mill,  then  about  nine- 
teen years  of  age,  who  was  without  other  legal  training  than  that  above 
mentioned,  the  work  of  editing  and  preparing  for  the  press  "  The  Ra- 
tionale of  Evidence."  Speaking  of  this  subject,  Mill  in  his  Autobiog- 
raphy (chap,  iii.),  says:  "About  the  end  of  1824,  or  beginning  of  1825, 
Mr.  Bentham,  having  lately  got  back  his  papers  on  Evidence  from  M. 
Dumont  (whose  Traite  des  Preuves  Judiciaires,  grounded  on  them,  was 
then  first  completed  and  published),  resolved  to  have  them  printed  in 
the  original,  and  bethought  himself  of  me  as  capable  of  preparing  them 
for  the  press.  I  gladly  undertook  this  task,  and  it  occupied  nearly  all 
my  leisure  for  about  a  year,  exclusive  of  the -time  afterwards  spent  in 
seeing  the  five  large  volumes  through  the  press.  Mr.  Bentham  had  be- 
gun this  treatise  three  times,  at  considerable  intervals,  each  time  in  a 
different  manner,  and  each  time  without  reference  to  the  preceding;  two 
of  the  three  times  he  had  gone  over  nearly  the  whole  subject.  These 
three  masses  of  manuscript  it  was  my  business  to  condense  into  a  sin- 
gle treatise,  adopting  the  one  last  written  as  the  groundwork,  and  in- 
corporating with  it  as  much  of  the  two  others  as  it  had  .not  completely 
superseded.  I  had  also  to  unroll  such  of  Bentham's  involved  and  paren- 
thetical sentences  as  seemed  to  overpass  by  their  complexity  the  meas- 
ure of  what  readers  were  likely  to  take  the  pains  to  understand.  It  was 
further  Mr.  Bentham's  particular  desire  that  I  should,  from  myself, 
endeavor  to  supply  any  lacunae  which  he  had  left ;  and  at  his  instance 
I  read,  for  this  purpose,  the  most  authoritative  treatises  on  the  English 
Law  of  Evidence,  and  commented  on  a  few  of  the  objectionable  points 
of  the  English  rules,  which  had  escaped  Bentham's  notice."  "  My  name 
as  editor  was  put  to  the  book  after  it  was  printed,  at  Mr.  Bentham's 
positive  desire,  which  I  in  vain  attempted  to  persuade  him  to  forego." 
"  The  '  Rationale  of  Judicial  Evidence '  is  one  of  the  richest  in  matter  of 
all  Bentham's  productions.  The  book  contains,  very  fully  developed,  a 
great  proportion  of  all  his  best  thoughts;  while  among  more  special 
things  it  comprises  the  most  elaborate  exposure  of  the  vices  and  defects 
of  English  law,  as  it  then  was,  which  is  to  be  found  in  his  works,  not 
confined  to  the  Law  of  Evidence,  but  including,  by  way  of  illustrative 
episode,  the  entire  procedure  of  practice  of  Westminster  Hall." 

1  The  influence  of  Bentham  in  America,  not  only  in  respect  of  the 
emendations  of  the  Law  of  Evidence,  but  through  the  efforts  of  other 
men  who  had  caught  his  spirit,  is  directly  seen  in  the  extent  to  which 
codification  has  been  adopted.  See  ante  Lecture  IX.,  p.  260,  note.  The 
labors  of  the  celebrated  Edward  Livingston  afford  another  interesting 
illustration  of  Bentham's  influence  in  this  country.  In  the  prime  of  his 


508        IV.     THE    NINETEENTH    CENTURY 

some  of  Bentham's  extreme  views,  and  the  extent  to  which 
the  questions  thus  raised  are  profoundly  agitating  at  this 
moment  not  only  a  few  thinking  minds  but  the  body  of  the 
profession,  —  and  this  not  only  in  England,  but  in  every 
country  which  speaks  the  language  and  which  has  adopted 
the  institutions  of  England.  This  would  lead  to  a  considera- 
tion of  the  controversies  between  the  analytical  and  the  his- 
torical schools  of  jurisprudence,  which  their  respective  ad- 
vocates yet  debate  with  much  of  their  original  warmth,  tend- 
ing to  the  result,  however,  that  there  is,  after  all,  truth  in 
each;  that  properly  understood  the  two  schools  are  not  an- 
tagonistic but  complementary;  and  that  the  true  course  is 
to  combine  the  logical  or  analytical  with  the  historical  and 
experimental,  the  former  mainly  supplying  data  for  scientific 
arrangement,  the  latter  mainly  supplying  the  matter  for  a 
revised,  improved,  and  systematic  jurisprudence.  I  must 

life  misfortunes  led  Livingston  in  1804  to  quit  the  home  of  his  ancestors 
in  New  York  and  to  make  a  new  home  in  New  Orleans,  then  recently 
acquired  by  the  United  States.  The  question  whether  the  procedure  in 
Louisiana  should  be  according  to  the  common  law  or  continue  upon  the 
basis  of  the  civil  and  Spanish  law  having  been  judicially  determined  in 
favor  of  the  latter,  Livingston  drew  up  what  is  in  effect  a  Code  of  Pro- 
cedure, which  was  adopted  by  the  Legislature  in  1805,  consisting  of 
twenty  sections  and  of  about  twenty-five  printed  pages.  In  its  essen- 
tial features  it  anticipated  the  codes  of  nearly  half  a  century  later. 
Under  an  act  of  the  General  Assembly  of  Louisiana,  approved  February 
10,  1820,  which  provided  that  a  person  learned  in  the  law  shall  be  ap- 
pointed to  prepare  a  Code  of  Criminal  Law,  Evidence,  and  Procedure, 
Livingston  was  on  February  13,  1821,  elected  by  the  joint  ballot  of  the 
Legislature  to  discharge  this  duty.  He  reported  his  plan  to  the  next 
Assembly,  which  "earnestly  solicited  him  to  prosecute  this  work  accord- 
ing to  his  report." 

In  1829  Livingston  had  an  interesting  correspondence  with  Bentham, 
in  which  the  former  acknowledged  that  he  received  his  first  impulse  "  to 
the  preparation  of  an  original,  comprehensive,  and  complete  system  of 
penal  legislation  from  Bentham's  works  which  had  appeared  in  the 
French  of  Dumont  in  1802."  Hunt,  "  Life  of  Edward  Livingston,"  p.  96, 
note.  "  The  perusal  of  your  works,"  said  Livingston  to  Bentham,  "  first 
gave  method  to  my  ideas,  and  taught  me  to  consider  legislation  as  a 
science  governed  by  certain  principles,  applicable  to  all  its  different 
branches,  instead  of  an  occasional  exercise  of  its  powers,  called  forth 
only  on  particular  occasions  without  relation  to  or  connection  with  each 
other."  He  thus  concludes:  "Hereafter  no  one  can  in  criminal  juris- 
prudence propose  any  favorable  change  that  you  have  not  recommended, 
or  make  any  wise  improvement  that  your  "superior  sagacity  has  not 
suggested."  Hunt,  p.  96,  note;  Bentham's  Works  (Bowring's  Ed.),  vol. 
x.,  p.  51.  Livingston  prepared  a  complete  Code  of  Crimes  and  Punish- 
ments, of  Procedure,  of  Evidence,  and  of  Reform  and  Prison  Discipline ; 
but  having  been  elected  to  Congress  and  practically  ceasing  to  reside 


15.     DILLON:   INFLUENCE   OF   BENTHAM    509 

content  myself  with  mentioning,  without  dwelling  upon,  these 
interesting  subjects. 

Passing  from  these  general  considerations,  I  proceed  to 
notice  specifically  two  other  subjects.  One  is  Bentham's 
reforms  in  the  Law  of  Evidence.  Here  the  direct  fruits  of 
Bentham's  labors  are  plainly  to  be  seen.  In  some  respects 
his  "  Judicial  Evidence,"  before  mentioned,  is  the  most  im- 
portant of  all  his  censorial  writings  on  English  law.  In  this 
"work  he  exposed  the  absurdity  and  perniciousness  of  many 
of  the  established  technical  rules  of  evidence.  "  In  certain 
cases,"  he  says,  "  jurisprudence  may  be  defined,  the  art  of 
"  being  methodically  ignorant  of  what  everybody  knows." 
Among  the  rules  combated  were  those  relating  to  the  com- 
petency of  witnesses  and  the  exclusion  of  evidence  on  various 
grounds,  including  that  of  pecuniary  interest.  He  insisted 
that  these  rules  frequently  caused  the  miscarriage  of  jus- 
tice, and  that  in  the  interest  of  justice  they  ought  to  be 
swept  away.  His  reasoning  fairly  embraces  the  doctrine 
that  parties  ought  to  be  allowed  and  even  required  to  testify. 
This  work  appeared  in  Paris  in  1802,  and  in  England  in 

in  Louisiana,  his  codes  were  never  enacted  into  laws.  Each  code  was 
accompanied  with  an  elaborate  introductory  report;  and  these  labors 
gave  him  great  and  deserved  fame  at  home  and  abroad.  Chancellor 
Kent  declared  that  Livingston  had  "  done  more  in  giving  precision, 
specification,  accuracy,  and  moderation  to  the  system  of  crimes  and 
punishment  than  any  other  legislator  of  the  age,  and  that  his  name 
would  go  down  to  posterity  with  distinguished  honor."  Hunt,  p.  281. 
Bentham  urged  that  Parliament  should  print  the  whole  work  for  the 
use  of  the  English  nation.  Hunt,  p.  278;  Bentham's  Works,  vol.  xi.,  p. 
37.  Villemain  declared  it  to  be  "  a  work  without  example  from  the 
hand  of  any  one  man."  Hunt,  p.  278.  Sir  Henry  Maine  pronounced 
Livingston  to  be  "  the  first  legal  genius  of  modern  times."  "  Village 
Communities,"  paper  on  "  Roman  Law  and  Legal  Education,"  published 
in  1856.  Although  the  Livingston  Code  was  not  adopted  as  a  whole, 
yet  Bancroft  is  quite  justified  in  the  observation  that  "it  has  proved 
an  unfailing  fountain  of  reforms  suggested  by  its  principles."  Intro- 
duction to  Hunt's  Life  of  Livingston,  p.  xvii.  The  Livingston  Codes 
and  Reports  were  republished  in  full  in  1873  by  the  National  Prison 
Association  of  the  United  States,  with  an  Introduction  by  Chief-Justice 
Chase,  in  which  he  expresses  the  satisfaction  of  the  Association  in  re- 
producing a  work  marked  with  such  "  keenness  of  insight,  clearness  of 
statement,  force  of  logic,  beauty  of  diction,  elevation  of  sentiment,  and 
breadth  of  sympathy."  He  declared  his  own  opinion  to  be  that  the 
work  "  will  prove  that  if  Livingston  was  in  advance  of  his  times,  the 
day  is  at  least  approaching  when  his  broad  and  comprehensive  views 
will  not  only  be  appreciated  but  realized." 


510        IV.     THE    NINETEENTH    CENTURY 

1825  and  1827 ;  but  it  produced  no  immediate  effect  on  the 
professional  mind.  It  was  generally  regarded  as  the  specu- 
lations of  a  visionary.  As  I  write  I  have  before  me  Starkie's 
Evidence,  the  third  edition  of  which  appeared  in  1842,  and 
the  wisdom  of  the  exclusionary  rules  of  evidence  is  not  so 
much  as  criticised  or  questioned. 

But  Bentham  had  set  a  few  men  thinking.  He  had  scat- 
tered the  seeds  of  truth.  Though  they  fell  on  stony  ground 
they  did  not  all  perish.  But  verily  reform  is  a  plant  of  slow 
growth  in  the  sterile  gardens  of  the  practising  and  prac-* 
tical  lawyer.  Bentham  lived  till  1832,  and  these  exclusion- 
ary rules  still  held  sway.  But  in  1843,  by  Lord  Denman's 
Act,  interest  in  actions  at  common  law  ceased,  as  a  rule,  to 
disqualify;  and  in  1846  and  1851,  by  Lord  Brougham's 
Acts,  parties  in  civil  actions  were  as  a  rule  made  competent 
and  compellable  to  testify.  I  believe  I  speak  the  universal 
judgment  of  the  profession  when  I  say  that  changes  more 
beneficial  in  the  administration  of  justice  have  rarely  taken 
place  in  our  law,  and  that  it  is  a  matter  of  profound  amaze- 
ment,  as  we  look  back  upon  it,  that  these  exclusionary  rules 
ever  had  a  place  therein,  and  especially  that  they  were  able 
to  retain  it  until  within  the  last  fifty  years. 

Let  us  be  just.  The  credit  of  originating  this  great  im- 
provement is  due  not  to  Denman  and  Brougham,  but  it  essen- 
tially belongs  to  Bentham,  although  he  was  in  his  grave 
before  it  was  actually  effected.1  Lord  Justice  Stephen  for- 
cibly remarks  of  Bentham's  assault  on  the  system  of  judicial 
evidence  that  "  it  was  like  the  bursting  of  a  shell  in  the 
"  powder  magazine  of  a  fortress,  the  fragments  of  the  shell 
"  being  lost  in  the  ruin  which  it  has  wrought."  2  The  'moral 
is  obvious.  The  philosophic  student  of  our  laws  may  often 
have  a  keener  and  juster  insight  into  their  vices  and  imper- 
fections than  the  practising  lawyer,  whose  life  and  studies 
are  exclusively  confined  to  the  ascertainment  and  application 
of  the  law  as  it  is,  and  who  rarely  vexes  himself  with  the 
question  of  what  it  ought  to  be,  or  makes  any  serious  effort 

1  See  post  lecture  XIII. 

•  ' "  General  View  of  the  Criminal  Law  of  England,"  p.  206 ;  also  In- 
troduction to  his  Digest  of  Evidence. 


15.     DILLON:  INFLUENCE   OF   BENTHAM   511 

to  reform  it.  But  let  me  not  be  misunderstood.  While  the 
philosophic  student  is  able  to  point  out  defects  in  the  laws, 
yet  the  history  of  the  law  shows  that  only  practical  lawyers 
are  capable  of  satisfactorily  executing  the  work  of  reform. 
Bentham's  failure  in  directly  realizing  greater  practical  re- 
sults grew  out  of  his  mistaken  notion  that  the  work  of  actual 
amendment  could  be  accomplished  without  experts,  —  that 
is,  without  the  aid  of  the  bar  and  without  its  active  support. 

The  last  matter  to  which  I  shall  refer  is  that  to  which 
Bentham  gave  the  name  by  which  it  is  now  universally 
known,  —  codification. 

With  a  view  to  ascertain  with  exactness  Bentham's  views, 
I  have  recently  gone  over  anew  his  writings  relating  to  this 
subject.  Very  different  ideas  in  our  day  are,  as  I  have  here- 
tofore said,  attached  to  what  is  meant  or  implied  by  a  code, 
and  much  of  the  dispute  concerning  codification  is  after  all 
one  over  words,  or  one  arising  from  the  want  of  a  previous 
definition  of  the  subject-matter  of  the  disputation.1  What 
Bentham  meant  by  codification,  however,  is  plain  enough. 
He  meant  that  a  code  should  embrace  all  general  legislation, 
not  simply  as  it  exists,  but  as  it  ought  to  be  amended  and 
made  to  exist,  —  that  is,  all  legislation  except  local  and 
special  statutes ;  that  it  also  should  embody  all  the  prin- 
ciples of  the  common  law  which  it  were  expedient  to  adopt, 
—  these  to  be  expressed  in  words  by  legislative  enactment, 
the  gaps  or  lacunce  to  be  filled  up  in  like  manner  by  the  legis- 
lature; the  whole  to  be  systematically  arranged,  so  that  all 
possible  cases  would  be  expressly  provided  for  by  written 
rules;  that  the  function  of  the  courts  to  make  "  judge-made 
law  "  as  he  is  fond  of  stigmatizing  it,  should  cease,  and  that 
thereafter  all  changes  or  additions  to  this  complete  and  au- 
thoritative body  of  law  should  be  made  by  the  law-making 
body,  and  by  it  alone. 

I  must  say  that  in  my  judgment  this  in  its  full  extent  is 
not  only  an  impracticable  scheme,  but  one  founded  in  part 
upon  wrong  principles.  In  a  refined  and  complex  civiliza- 
tion no  legislative  foresight,  no  finite  intelligence,  can  antic- 
1  See  ante  Lecture  VI.,  p.  180. 


512        IV.     THE    NINETEENTH    CENTURY 

ipate,  define,  catalogue,  and  formulate  in  advance  rules  ap- 
plicable to  the  infinite  number  and  the  infinite  variety  of 
cases  that  will  inevitably  arise.  This  view  of  a  code  also 
exaggerates,  or,  to  use  Bentham's  language,  maximizes,  the 
evils  of  case-law,  and  underrates  or  minimizes  its  advantages. 
It  overlooks  the  fact  that  case-law  is  a  permanent  necessity. 
The  judicial  office  will,  at  all  times,  under  any  possible  code, 
have  to  deal  with  and  determine  questions  and  cases  not  pos- 
sible to  be  provided  for  by  any  express  statutory  provision.1 
A  well-constructed  code  may,  and  doubtless  will,  lessen  the 
number  of  such  questions  and  cases ;  but  no  code  can  do 
more.  The  rest  must  be  left  to  the  courts.  M.  Portalis,  in  a 
well-known  paper  relating  to  the  French  Civil  Code,  ex- 
presses this  truth  with  clearness  and  force.  "  It  is  to  juris- 
"  prudence  [using  the  term  in  distinction  from  statute  or 
"  positive  law]  that  the  legislator  must  abandon  those  rare 
"  and  extraordinary  cases  which  cannot  enter  into  the  scheme 
"  of  a  rational  legislation ;  the  variable,  unaccountable  de- 
"  tails  which  ought  never  to  occupy  the  attention  of  the  leg- 
"  islator,  and  all  of  those  objects  which  it  would  be  in  vain 
"  to  attempt  to  foresee,  and  dangerous  prematurely  to 
"  define." 

We  have  now,  and  for  centuries  have  had,  two  wholly  in- 
dependent manufactories,  so  to  speak,  of  law,  —  the  legis- 
lature professedly  making  statute  law,  the  courts  silently 
making  case-law ;  and  this  without  any  unity  of  conception, 
plan,  or  action.  Statutes  are  piled  upon  statutes,  and  the 
law  reports  of  Great  Britain  and  America  may  be  roundly 
put  at  eight  thousand  volumes,  and  are  constantly  multiply- 
ing. 2  This  colossal  body  of  case-law  is  wholly  unorganized 
and  even  unarranged,  except  so  far  as  digests  and  elemen- 
tary treatises  may  be  considered  as  an  arrangement,  which 
scientifically  viewed  they  are  not.  The  infinite  details  of  this 
mountainous  mass  in  its  existing  shape  —  bear  me  witness, 
ye  who  hear  me !  —  no  industry  can  master  and  no  memory 
retain.  The  English  portion  of  it  has  been  aptly  likened  to 

»See  ante  Lecture  X.,  p.  268;    Dillon,  Munic.  Corp.    (4th  ed.),  voL 
ii.,  §  934,  a;    Amos,  "  Science  of  Law,"  chap.  v. 
•  See  ante  Lectures  VIII.,  IX,  X.,  passim. 


15.     DILLON \  INFLUENCE   OF   BENTHAM   513 

"  chaos  tempered  by  Fisher's  Digest."  The  American  por- 
tion already  exceeds  in  size  and  complexity  the  English  por- 
tion, and  as  we  attempt  to  survey  it  we  are  reminded  of  the 
dread  and  illimitable  region  described  by  Milton,  where 

..."  Chaos  umpire  sits, 

And  by  decision  more  embroils  the  fray 

By  which  he  reigns." 

I  do  not  believe  that  it  is  practicable  to  codify  it  all,  in 
the  sense  that  the  resulting  code  shall  supersede  for  all  pur- 
poses the  law  reports;  but  on  many  subjects,  and  to  a  very 
large  extent  in  respect  of  all,  codification  is  practicable,  and 
so  far  as  it  is  practicable,  it  is,  if  well  done,  desirable.  Mark 
the  qualification,  if  well  done,  not  otherwise. 

Any  code  that  is  made,  whatever  may  be  its  scope,  must 
be  based  upon  the  fundamental  principle  that  the  existing 
body  of  our  law  as  it  has  been  developed  in  the  workings  of 
our  institutions  and  tested  by  our  experience  is  in  substance 
the  law  that  is  best  fitted  to  our  condition  and  wants ;  for 
all  true  law  has  its  root  in  the  life,  spirit,  ideas,  usages,  in- 
stincts, and  institutions  of  the  people.  It  springs  from 
within ;  it  is  not  something  alien  to  the  people,  to  be  imposed 
on  them  from  without.  If  a  metaphor  will  not  mislead,  true 
law  is  a  native,  independent,  natural  growth,  and  not  an 
exotic.  Bentham  did  not  deny  this  in  principle,  but  he  was 
too  much  inclined  to  look  at  laws  logically  rather  than  his- 
torically. It  follows  that  a  code  must  not  be  one  imitated 
from  or  servilely  fashioned  after  Roman  or  foreign  models. 
On  this  subject  Bentham  had  correct  notions.  His  bold, 
original  mind  and  his  self-sufficient  powers  saw  as  little  to 
admire  in  the  Roman  as  in  the  English  law.  I  repeat  it  as 
my  judgment  that  our  code  must  not  pre-suppose  that  the 
Roman  law  as  it  anciently  existed,  or  as  it  exists  in  the  mod- 
ern adaptations  of  it  in  the  States  of  Continental  Europe, 
is  superior  in  matter,  substance,  or  value,  to  the  native, 
natural,  indigenous  product.  It  must  assume  precisely  the 
contrary.  Freeman  puts  a  general  truth  epigrammatically 
when  he  says  "  that  we,  the  English  people,  are  ourselves 


514        IV.     THE    NINETEENTH    CENTURY 

'*  and  not  somebody  .else.  .  .  .  Englishmen  after  all  are 
"  Englishmen."  1 

This  is  equally  true  of  the  American  people.  And  both 
Englishmen  and  Americans  want  their  own  laws,  and  not 
those  of  some  other  people.  It  would  be  as  impossible  radi- 
cally to  change  their  legal  systems  as  to  change  the  nature 
of  the  people.  The  materials  for  such  a  code  already  exist. 
A  period  of  development  is  at  some  time  reached  in  the 
legal  history  of  every  people  when  it  is  necessary  to  restate 
and  reconstruct  their  laws.  It  seems  to  me  that  we  have 
reached  that  period.  Our  materials  for  such  restatement 
and  reconstruction,  which  we  may,  if  you  please,  call  a 
code,  are  ample.  They  surpass  in  extent,  in  abundance,  in 
variety,  in  richness,  and  above  all,  in  adaptation  to  our 
wants,  any  supply  that  can  come  from  foreign  sources.  2 

What  Sir  Henry  Maine  aptly  calls  "  tacit  codification  " 
is  a  process  which  is  in  constant  operation,  through  the  la- 
bors of  judges  and  text-writers.  In  this  work  elementary 
writers  of  learning  and  experience  take  an  important  part. 
In  the  scattered  condition  of  our  case-law  their  works  are 
indispensable.  When  judges  and  text-writers  deduce  from 
the  cases  a  principle  and  formulate  it,  and  that  formula  is 
stamped  with  authority,  either  by  long  usage  or  judicial 
sanction,  so  that  the  courts  do  not  go  behind  it  to  the  cases 
from  which  it  was  deduced,  there  you  have  to  this  extent 
codification.  This  "  stereotyping,  as  it  were,  of  certain 
"  legal  rules,  is,"  says  Maine,  "  at  this  moment  proceeding 
"  with  unusual  rapidity,  and  is  indeed  one  of  the  chief  agen- 
"  cies  which  save  us  from  being  altogether  overwhelmed  by 
"  the  enormous  growth  of  our  case-law."  3 

What  is  needed  is  the  constructive  genius  and  practical 
wisdom  that  can  take  these  truly  rich,  invaluable,  native 
but  scattered  materials,  —  using  with  a  wise  and  generous 
eclecticism  foreign  materials  only  when  the  native  do  not 

1  Preface  to  lecture,  "  Chief  Periods  of  European  History." 

*  See  ante  Lecture  VI.,  p.  174;    Lecture  X. 

•Village  Communities"  (Am.  Ed.),  pp.  368,  369.  The  subject  of 
text-books  as  one  of  the  literary  authorities  of  our  law,  their  office  and 
use,  the  functions  of  text-book  writers,  and  the  nature  of  text-book  law, 
I  have  seen  nowhere  so  fully  or  well  presented  as  in  Professor  Clarke's 
"Practical  Jurisprudence,"  part  ii.,  chaps,  vii.-xii.,  inclusive. 


15.     DILLON:  INFLUENCE   OF   BENTHAM   515 

exist  or  the  foreign  are  manifestly  .superior,  —  and  out  of 
all  these  build  an  edifice  of  law,  primarily  designed  and 
adapted  to  daily  use,  which  shall  be  at  once  symmetrical, 
harmonious,  simple,  and  commodious.  There  is  here  room 
and  need  for  all.  The  institutional  writer,  the  law  teacher, 
the  philosophic  student,  the  scientific  jurist,  the  experienced 
lawyer,  the  learned  judge,  the  practical  legislator,  has  each 
his  place.  They  are  not  repellent  and  antagonistic  agencies, 
but  allies  and  co-laborers  in  the  noblest  work  that  can 
engage  the  attention,  and  draw  forth  and  exemplify  the 
highest  powers  of  the  human  intellect.  Toward  the  realiza- 
tion of  this  ideal  let  us  press  on  with  generous  ardor,  guided 
not  by  the  motto  of  Ihering,  prescribed  for  Continental 
action,  — "  Through  the  Roman  law,  but  beyond  it,"  — 
but  rather  by  this  other  motto :  "  Through  our  own  law, 
"  and  beyond  it  wherever  it  is  plainly  defective  or  incom- 
"  plete." 


16.     PROGRESS    IN    THE    ADMINISTRATION    OF 
JUSTICE  DURING  THE  VICTORIAN  PERIOD1 

BY  CHARLES  SYNGE  CHRISTOPHER,  BARON  BOWEN  2 

NO  story  can  be  more  difficult  to  tell  than  that  of  the 
progress  of  reforms  in  the  administration  of  the  law 
during  a  period  of  fifty  years.  It  consists  for  the  most  part 
of  the  history  of  countless  changes  of  detail,  many  of  which 
must  remain  absolutely  unintelligible  to  the  greater  portion 
of  the  public.  To  comprehend  their  exact  value  would  re- 
quire a  number  of  minute  and  technical  explanations  suf- 
ficient to  fill,  not  merely  one  chapter,  but  several  volumes. 
All  that  can  be  aimed  at  within  the  compass  of  a  few  pages 
is  to  endeavour  to  sketch  in  outline  the  broad  features  of  a 
picture  which  it  would  be  hopeless  to  attempt  to  render  elab- 
orate or  complete.  The  recent  fusion  of  the  superior  tribu- 
nals of  the  country  into  a  single  Supreme  Court  of  Judica- 
ture is  a  landmark  on  which  the  attention  of  the  lay  world 
fastens,  and  which  it  in  some  measure  can  appreciate.  Yet 
this  change,  important  as  it  is,  has  only  perfected  and 
crowned  a  long  course  of  simplification  and  reform,  of  which 
it  is  the  logical  consequence.  Perhaps  the  best  way  of  mak- 
ing the  narrative  understood  by  those  who  are  not  adepts 
in  the  language  or  the  procedure  of  the  law  will  be  to  explain 
briefly,  even  if  it  must  of  necessity  be  roughly,  what  the  great 
English  Courts  of  Justice  were  at  the  beginning  of  the  reign, 

1  This  essay  was  published  as  a  chapter  in  "  The  Reign  of  Queen  Vic- 
toria; a  Survey  of  Fifty  Years  of  Progress,"  1887,  volume  I,  pp.  281- 
329,  edited  by  Thomas  Humphrey  Ward  (London:  Smith,  Elder,  &  Co.). 

1 1835-1894.  B.  A.  Balliol  College,  Oxford,  1857,  M.  A.  1872,  D.  C.  L. 
1883;  Barrister  and  Bencher  of  Lincoln's  Inn;  judge  of  the  High 
Court,  Queen's  Bench  Division,  1879;  judge  of  the  Court  of  Appeal, 
1888;  lord  of  appeal  in  ordinary,  1893. 

516 


16.     BOWEN:    THE    VICTORIAN    PERIOD   517 

and  the  kind  of  imperfection  that  existed  in  their  constitu- 
tion and  their  practice. 

The  ancient  barrier  which  separated  the  several  Courts  of 
the  Common  Law  from  the  Court  of  Chancery  still  subsisted 
in  the  year  1837.  Two  systems  of  judicature,  in  many  re- 
spects at  variance  with  each  other,  flourished  side  by  side 
under  the  famous  roof  of  Westminster  Hall.  The  principle 
of  a  division  of  labour  by  which  distinct  machinery  can  be 
accommodated  to  special  subject-matter  is  based  upon  reason 
and  convenience.  A  large  portion  of  the  law  business  of 
the  country  is  made  up  of  litigation  in  the  result  of  which 
no  one  is  directly  interested  but  the  rival  combatants.  But 
there  are  many  matters  of  which  the  law  takes  cognisance 
that  necessitate  a  special  and  a  more  complicated  mechanism 
for  their  adjustment.  The  property  of  infants,  for  exam- 
ple, requires  to  be  protected  —  trusts  to  be  managed  day 
by  day  during  a  long  period  of  years  —  the  estates  of  de- 
ceased persons  to  be  dealt  with  for  the  benefit  of  creditors, 
the  assets  to  be  collected  and  distributed,  accounts  to  be 
taken,  directions  to  be  given,  questions  to  be  settled  once 
for  all  that  affect  the  interests  of  many.  It  is  desirable  that 
special  tribunals  should  be  armed  with  the  particular  organi- 
sation requisite  for  purposes  such  as  these.  The  distinction 
between  law  and  equity  went,  however,  far  beyond  what  was 
needed  to  carry  out  this  natural  division  of  labour.  The  two 
jurisdictions  had  no  common  historical  origin,  and  the  prin- 
ciples on  which  they  administered  justice  were  unlike.  The 
remedies  they  afforded  to  the  suitor  were  different;  their 
procedure  was  irreconcilable;  they  applied  diverse  rules  of 
right  and  wrong  to  the  same  matters.  The  common  law 
treated  as  untenable  claims  and  defences  which  equity  allowed, 
and  one  side  of  Westminster  Hall  gave  judgments  which  the 
other  restrained  a  successful  party  from  enforcing.  The 
law  had  always  cherished  as  its  central  principle  the  idea 
that  all  questions  of  fact  could  best  be  decided  by  a  jury. 
Except  in  cases  relating  to  the  possession  of  land,  the  relief 
it  gave  took,  as  a  rule,  the  shape  of  money  compensation,  in 
the  nature  either  of  debt  or  of  damages.  The  procedure  of 
the  Court  of  Chancery,  on  the  other  hand,  was  little  adapted 


518         IV.     THE    NINETEENTH   CENTURY 

for  the  determination  of  controverted  issues  of  fact,  and  it 
was  constantly  compelled  to  have  recourse  for  that  purpose 
to  the  assistance  of  a  court  of  law.  The  common  law  had 
no  jurisdiction  to  prevent  a  threatened  injury;  could  issue 
no  injunctions  to  hinder  it;  was  incompetent  to  preserve 
property  intact  until  the  litigation  which  involved  the  right 
to  it  was  decided;  had  no  power  of  compelling  litigants  to 
disclose  what  documents  in  their  possession  threw  a  light  upon 
the  dispute,  or  to  answer  interrogatories  before  the  trial. 
In  all  such  cases  the  suitor  was  driven  into  equity  to  assist 
him  in  the  prosecution  even  of  a  legal  claim.  The  Court  of 
Chancery,  in  its  turn,  sent  parties  to  the  Law  Courts  when- 
ever a  legal  right  was  to  be  established,  when  a  decision  on 
the  construction  of  an  Act  of  Parliament  was  to  be  obtained, 
a  mercantile  contract  construed,  a  point  of  commercial  law 
discussed.  Suits  in  Chancery  were  lost  if  it  turned  out  at  the 
hearing  that  the  plaintiff,  instead  of  filing  his  bill  in  equity, 
might  have  had  redress  in  a  law  court;  just  as  plaintiffs 
were  nonsuited  at  law  because  they  should  have  rather  sued  in 
equity,  or  because  some  partnership  or  trust  appeared  unex- 
pectedly on  the  evidence  when  all  was  ripe  for  judgment. 
Thus  the  bewildered  litigant  was  driven  backwards  and  for- 
wards from  law  to  equity,  from  equity  to  law.  The  conflict 
between  the  two  systems,  and  their  respective  modes  of  re- 
dress, was  one  which,  if  it  had  not  been  popularly  supposed 
to  derive  a  sanction  from  the  wisdom  of  our  forefathers, 
might  well  have  been  deemed  by  an  impartial  observer  to  be 
expressly  devised  for  the  purpose  of  producing  delay,  uncer- 
tainty, and  untold  expense. 

The  common  law  tribunals  of  Westminster  Hall  con- 
sisted of  three  great  courts,  each  with  a  different  history 
and  originally  different  functions.  In  the  growth  of  time, 
and  by  dint  of  repeated  legislation,  all,  so  far  as  the  bulk 
of  the  litigation  of  the  country  was  concerned,  had  acquired 
equal  jurisdiction,  and  no  practical  necessity  was  left  for  the 
maintenance  side  by  side  of  three  independent  channels  of 
justice,  in  each  of  which  the  streams  ran  in  a  similar  fash- 
ion and  performed  the  same  kind  of  work.  First  came 
the  Queen's  Bench,  composed  of  a  chief  justice  and  four 


16.     BOWEN:    THE    VICTORIAN    PERIOD   519 

puisne  judges.  Its  authority  was  supreme  over  all  tribunals 
of  inferior  jurisdiction.  It  took  sovereign  cognisance  of  civil 
and  criminal  causes  alike  —  kept  the  Ecclesiastical  Courts 
and  the  Admiralty  within  bounds,  controlled  magistrates 
and  justices,  supervised  the  proceedings  of  civil  corporations, 
repressed  and  corrected  all  usurpations,  all  encroachments 
upon  common  right.  It  wielded  two  great  weapons  of 
justice  over  public  bodies:  mandamus,  whereby,  when  no 
other  remedy  appeared  available,  it  compelled  them  to  fulfil 
the  law;  prohibition,  by  means  of  which  it  confined  all 
inferior  authorities  strictly  to  their  respective  provinces 
and  powers.  The  Court  of  Common  Pleas,  historically  the 
most  ancient  of  the  three,  which  had  retained,  with  no  par- 
ticular benefit  to  society,  supervision  over  the  few  ancient 
forms  of  real  actions  that  still  survived,  exercised  also  a 
general  authority  over  personal  actions.  It  was  directed  by 
a  chief  justice  and  four  puisne  justices.  It  laboured,  how- 
ever, under  the  disadvantage  that,  as  far  as  the  general  bar 
of  England  was  concerned,  it  was  a  '  champ  clos.'  Serjeants- 
at-law  had  exclusive  audience  in  it  during  term  time,  and  it 
was  not  till  1847  that  this  vexatious  and  injurious  monopoly 
was  finally  abolished.  The  Court  of  Exchequer  had  been 
from  early  years  the  special  tribunal  for  dealing  with  mat- 
ters in  which  the  king's  revenue  was  interested.  It  still 
retained  in  revenue  cases  and  some  other  matters  a  particu- 
lar jurisdiction,  though  clothed  by  this  time  (like  the  Queen's 
Bench  and  the  Common  Pleas)  with  power  over  all  actions 
that  were  personal.  Besides  these  functions,  it  was  also  a 
Court  of  Equity,  and  took  part  from  time  to  time  in  the 
Chancery  business  of  the  realm.  A  chief  baron  was  at  the 
head,  assisted  by  four  puisne  barons,  of  whom  two  still  re- 
main and  preserve  to  us  a  title  which  otherwise  would  be 
extinct,  the  present  Baron  Pollock  and  Baron  Huddleston. 

The  procedure  at  the  common  law,  as  compared  with 
the  wants  of  the  country,  had  become  antiquated,  technical, 
and  obscure.  In  old  days  the  courts  at  Westminster  were 
easily  able  to  despatch,  during  four  short  terms  of  three 
weeks  each,  together  with  the  assizes  and  sittings  at  Guild- 
hall, the  mass  of  the  business  brought  before  them.  But, 


520        IV.     THE    NINETEENTH    CENTURY 

from  the  beginning  of  the  century,  the  population,  the  wealth, 
the  commerce  of  the  country  had  been  advancing  by  great 
strides,  and  the  ancient  bottles  were  but  imperfectly  adapted 
to  hold  the  new  wine.  At  a  moment  when  the  pecuniary 
enterprises  of  the  kingdom  were  covering  the  world,  when 
railways  at  home  and  steam  upon  the  seas  were  creating 
everywhere  new  centres  of  industrial  and  commercial  life, 
the  Common  Law  Courts  of  the  realm  seemed  constantly 
occupied  in  the  discussion  of  the  merest  legal  conundrums, 
which  bore  no  relation  to  the  merits  of  any  controversies 
except  those  of  pedants,  and  in  the  direction  of  a  machinery 
that  belonged  already  to  the  past.  Frivolous  and  vexatious 
defences  upon  paper  delayed  the  trial  of  a  litigant's  cause. 
Merchants  were  hindered  for  months  and  years  from  recov- 
ering their  just  dues  upon  their  bills  of  exchange.  Causes 
of  action  had  become  classified,  as  if  they  were  so  many  Aris- 
totelian categories  —  a  system  which  secured  learning  and 
precision,  but  at  the  risk  of  encouraging  technicality ;  and 
two  causes  of  complaint  could  not  be  prosecuted  in  one  and 
the  same  action  unless  they  belonged  to  the  same  meta- 
physical '  form.'  An  action  on  a  bond  could  not  be  joined 
with  a  claim  upon  a  bill  of  exchange.  A  man  who  had  been 
assaulted  and  accused  of  theft  in  the  market-place  of  his 
town  was  obliged,  if  he  wished  redress  for  the  double  wrong, 
to  issue  two  writs  and  to  begin  two  litigations,  which  wound 
their  course  through  distinct  pleadings  to  two  separate  trials. 
If  a  surprise  occurred  at  Nisi  Prius  or  the  assizes,  the  court 
was  unable  to  adjourn  the  proceedings  beyond  a  single  day. 
Old  fictions  still  survived,  invented  in  bygone  ages  to  assist 
justice  —  with  no  particular  harm  left  in  them,  it  is  true,  but 
which  were  well  fitted  to  encourage  the  popular  delusion  that 
English  law  was  a  mass  of  ancient  absurdity.  In  order  to 
recover  possession  of  any  piece  of  land,  the  claimant  began 
his  action  by  delivering  to  the  defendant  a  written  statement 
narrating  the  fictitious  adventures  of  two  wholly  imaginary 
characters  called  John  Doe  and  Richard  Roe,  personages 
who  had  in  reality  no  more  existence  than  Gog  and  Magog. 
The  true  owner  of  the  land,  it  was  averred,  had  given  John 
Doe  a  lease  of  the  property  in  question,  but  John  Doe  had 


16.     BOWEN:    THE    VICTORIAN    PERIOD   521 

been  forcibly  and  wrongly  ejected  by  Richard  Roe,  and  had 
in  consequence  begun  an  action  of  trespass  and  ejectment 
against  him.  Richard  Roe,  meanwhile,  being  a  "  casual 
ejector  "  only,  advised  the  real  defendant  to  appear  in  court 
and  procure  himself  to  be  made  defendant  in  the  place  of  the 
indifferent  and  unconcerned  Richard  Roe,  otherwise  the  de- 
fendant would  infallibly  find  himself  turned  out  of  posses- 
sion. Till  within  the  last  twenty-six  years,  this  tissue  of 
invention  of  unreal  persons  and  of  non-existent  leases  pre- 
ceded every  investigation  of  the  claim  to  possession  of  land. 
Nor  was  the  trial  itself  of  a  common  law  cause  productive 
of  certain  justice.  Right  was  liable  to  be  defeated  by  mis- 
takes in  pleading,  by  variances  between  the  case  as  previously 
stated  upon  paper  and  the  case  as  it  stood  ultimately  upon 
the  evidence,  or  by  the  fact  that  the  right  party  to  the  suit 
had  not  been  nominally  joined,  or  that  some  wrong  party 
had  been  accidentally  joined  with  him.  Perhaps  the  most 
serious  blemish  of  all  consisted  in  the  established  law  of 
evidence,  which  excluded  from  giving  testimony  all  witnesses 
who  had  even  the  minutest  interest  in  the  result,  and,  as  a 
crowning  paradox,  even  the  parties  to  the  suit  themselves. 
*  The  evidence  of  interested  witnesses,'  it  was  said,  *  can 
never  induce  any  rational  belief.'  The  merchant  whose 
name  was  forged  to  a  bill  of  exchange  had  to  sit  by,  silent 
and  unheard,  while  his  acquaintances  were  called  to  offer 
conjectures  and  beliefs  as  to  the  authenticity  of  the  disputed 
signature  from  what  they  knew  of  his  other  writings.  If  a 
farmer  in  his  gig  ran  over  a  foot-passenger  in  the  road, 
the  two  persons  whom  the  law  singled  out  to  prohibit  from 
becoming  witnesses  were  the  farmer  and  the  foot-passenger. 
In  spite  of  the  vigorous  efforts  of  Lord  Denman  and  others, 
to  which  the  country  owes  so  much,  this  final  absurdity, 
which  closed  in  court  the  mouths  of  those  who  knew  most 
about  the  matter,  was  not  removed  till  the  year  1851. 

In  a  strictly  limited  number  of  cases  the  decisions  of  the 
three  courts  could  be  reviewed  in  the  Exchequer  Chamber  — 
a  shifting  body  composed  of  alternate  combinations  of  the 
judges,  and  so  arranged  that  selected  members  from  two  of 
the  courts  always  sat  to  consider  such  causes  as  came  to 


522         IV.     THE    NINETEENTH    CENTURY 

them  by  writ  of  error  from  the  third.  The  House  of  Lords, 
in  its  turn,  was  the  appointed  Court  of  Error  from  the 
Exchequer  Chamber.  The  modern  system  of  appeal,  ren- 
dered necessary  in  our  day  by  the  weakening  of  the  Courts 
in  Bane  and  the  development  of  what  has  been  called  the 
single-judge  system,  had  not  yet  come  into  existence.  Nor, 
in  truth,  on  the  common  law  side  of  Westminster  Hall  was 
there  any  great  necessity  for  it.  The  Queen's  Bench,  the 
Common  Pleas,  and  the  Exchequer  —  whatever  the  imper- 
fection of  the  procedure  —  were  great  and  powerful  tri- 
bunals. In  each  of  them  sat  a  chief  of  mark,  with  three 
puisnes  to  assist  him,  and  the  weight  of  authority  of  four 
judges,  amongst  whom  there  could  not  well  fail  to  be  present 
one  or  more  men  of  the  first  rank  of  intellect  and  experience, 
was  sufficient  as  a  rule  to  secure  sound  law  and  to  satisfy 
the  public.  The  prestige,  again,  of  the  Exchequer  Chamber 
in  such  cases  as  were  allowed  to  reach  it  upon  error  was  of 
the  highest  order.  But  the  principle  upon  which  appeals 
were  allowed  by  the  law  in  some  matters,  and  refused  in 
others,  was  full  of  anomalies.  Only  matters  of  '  error  '  which 
were  apparent  on  the  record  could  be  the  subject  of  a  hear- 
ing in  the  Exchequer  Chamber.  No  appeal  lay  on  subjects 
so  important  as  a  motion  for  a  new  trial  or  to  enter  a  verdict 
or  a  nonsuit  —  motions  which  proceeded  on  the  assumption 
of  miscarriages  in  law  by  the  judge  or  the  jury  who  tried 
the  cause.  If  the  aggrieved  party  had  not  succeeded  in 
complying  at  the  trial  with  the  difficult  formalities  of  the 
rule  as  to  bills  of  exceptions  —  an  old-fashioned  and  often 
impracticable  method  of  challenging  the  direction  of  a  judge 
—  no  review  of  it  was  possible.  Error  lay  from  a  special 
verdict,  where  the  parties  had  arranged,  or  the  judge  di- 
rected at  the  trial,  a  special  statement  of  the  facts.  No  error 
lay  upon  a  special  case  framed  without  a  trial  by  consent. 
That  is  to  say,  no  appeal  was  permitted  unless  the  expen- 
sive preliminary  of  a  useless  trial  had  first  been  thrown  away. 
The  technicalities  which  encumbered  the  procedure  of  the 
courts  furnished  one  reason,  no  doubt,  for  the  arrears  which 
loaded  the  lists  at  the  accession  of  her  Majesty.  Other 
accessory  causes  may  be  found  in  the  survival  till  a  late 


16.     BOWEN:    THE    VICTORIAN    PERIOD   523 

date  of  the  old-fashioned  term  of  three  weeks,  recurring 
four  times  a  year,  at  the  end  of  which  the  courts  ceased 
sitting  to  decide  purely  legal  questions  while  the  three  chiefs 
repaired  to  jury  trials  at  Nisi  Prius.  It  was  not  till  after 
the  beginning  of  the  reign  that  an  Act  of  Parliament  was 
passed  which  enabled  the  Queen's  Bench,  the  Common  Pleas, 
and  the  Exchequer  to  dispose  in  Bane  sittings  after  term 
of  business  left  unfinished  on  their  hands.  Under  the  old 
system,  the  last  day  of  term  was  famous  for  the  crowd  of 
counsel  and  of  solicitors  solely  intent  upon  having  their 
pending  rules  '  enlarged,'  or,  in  other  words,  adjourned  till 
term  should  again  begin.  The  Queen's  counsel  in  the  front 
benches  spent  the  day  in  obtaining  the  formal  leave  of  the 
court  to  this  facile  process,  and  in  marking  each  brief  in 
turn  with  a  large  '  E  '  as  the  token  of  a  regular  '  enlarge- 
ment.' '  How  do  you  manage  to  get  through  your  business 
in  the  Queen's  Bench?"  said  a  spectator  to  the  late  Sir 
Frederick  Thesiger  (afterwards  Lord  Chelmsford).  '  We 
find  no  difficulty,'  said  the  eminent  counsel ;  '  we  do  it  always 
with  great  Ease.'  At  the  beginning  of  1837,  the  accu- 
mulation of  arrears  in  the  Queen's  Bench,  to  which  court 
the  great  bulk  of  business  necessarily  drifted,  had  been  most 
formidable.  Three  hundred  cases  of  various  descriptions 
were  waiting  for  argument  in  Bane.  The  Law  Magazine 
of  two  years  later  still  complained,  in  its  notice  of  the  cur- 
rent events  of  the  quarter,  that  the  Bane  arrears  had  reached 
to  such  a  pass  that  a  rule  nisi  for  a  new  trial  could  not  in 
all  probability  be  disposed  of  under  two  years  and  a  half 
from  the  time  of  granting  it,  at  the  end  of  which  time,  if 
the  application  were  even  granted,  the  cause  would  still  have 
to  be  reheard. 

The  Court  of  Chancery  was  both  a  judicial  tribunal  and 
an  executive  department  of  justice  for  the  protection  and 
administration  of  property,  but  the  machinery  that  it  em- 
ployed for  the  two  purposes  was,  unfortunately,  not  kept 
distinct.  Its  procedure  in  contentious  business  served  as  tlie 
basis  of  its  administrative  operations,  and  persons  between 
whom  there  was  no  dispute  of  fact  at  all  found  themselves 
involved  in  the  delays  and  the  embarrassments  of  a  needless 


524        IV.     THE   NINETEENTH   CENTURY 

lawsuit.  In  its  judicial  capacity  the  Court  of  Chancery 
gave  effect  to  rights  beyond  the  reach  of  the  common  law, 
corrected  the  evils  that  flowed  from  the  imperfect  jurisdic- 
tion and  remedies  of  the  Common  Law  Courts,  and  dealt 
with  whole  classes  of  transactions  over  which  it  had  ac- 
quired a  special  cognisance.  The  code  of  ethics  which  it 
administered  was  searching  and  precise  —  academical,  per- 
haps, rather  than  worldly,  the  growth  of  the  brains  of 
great  masters  of  learning  and  of  subtlety,  whose  maxims 
and  refinements  had  crystallised  into  a  system.  But  its 
practice  was  as  dilatory  and  vexatious  as  its  standard  of 
right  and  wrong  was  noble  and  accurate.  For  deciding 
matters  of  conflicting  testimony  it  was  but  little  fitted.  It 
tossed  about  as  hopelessly  in  such  cases  as  a  ship  in  the 
trough  of  the  sea,  for  want  of  oral  testimony  —  a  simple 
and  elementary  method  of  arriving  at  the  truth,  which  no 
acuteness  can  replace.  It  had  no  effective  machinery  at 
all  for  the  examination  or  the  cross-examination  of  witnesses, 
and  (as  we  have  seen)  fell  back  upon  the  Common  Law 
Courts  whenever  questions  of  pure  law  were  raised,  or  as 
soon  as  depositions  and  affidavits  became  hopelessly  irrecon- 
cilable. Oral  evidence  had  always  been  at  common  law  the 
basis  of  the  entire  system,  although  the  common  law  per- 
versely excluded  from  the  witness-box  the  parties  to  the  cause 
who  naturally  knew  most  about  the  truth.  The  Court  of 
Chancery,  on  the  other  hand,  allowed  a  plaintiff  to  search 
the  conscience  of  the  defendants,  and  the  defendants,  by  a 
cross  bill,  to  perform  a  similar  operation  upon  their  antag- 
onist, but  only  permitted  the  inquiry  to  be  on  paper.  A 
bill  in  a  Chancery  suit  was  a  marvellous  document,  which 
stated  the  plaintiff's  case  at  full  length  and  three  times  over. 
There  was  first  the  part  in  which  the  story  was  circum- 
stantially set  forth.  Then  came  the  part  which  "  charged  " 
its  truth  against  the  defendant  —  or,  in  other  words,  which 
set  it  forth  all  over  again  in  an  aggrieved  tone.  Lastly  came 
the  interrogating  part,  which  converted  the  original  alle- 
gations into  a  chain  of  subtly  framed  inquiries  addressed  to 
the  defendant,  minutely  dovetailed  and  circuitously  arranged 
so  as  to  surround  a  slippery  conscience  and  to  stop  up 


16.     BOWEN:    THE    VICTORIAN    PERIOD   525 

every  earth.  No  layman,  however  intelligent,  could  compose 
the  '  answer  '  without  professional  aid.  It  was  inevitably  so 
elaborate  and  so  long,  that  the  responsibility  for  the  accu- 
racy of  the  story  shifted,  during  its  telling,  from  the  con- 
science of  the  defendant  to  that  of  his  solicitor  and  counsel, 
and  truth  found  no  difficulty  in  disappearing  during  the 
operation.  Unless  the  defendant  lived  within  twenty  miles 
of  London,  a  special  commission  was  next  directed  to  solicit- 
ors to  attest  the  oath  upon  which  the  lengthy  answer  was 
sworn,  and  the  answer  was  then  forwarded  by  sworn  mes- 
senger to  London.  Its  form  often  rendered  necessary  a 
re-statement  of  the  plaintiff's  whole  position,  in  which  case 
an  amended  bill  was  drawn  requiring  another  answer,  until 
at  last  the  voluminous  pleadings  were  completed  and  the 
cause  was  at  issue.  By  a  system  which  to  lawyers  in  1887 
appears  to  savour  of  the  Middle  Ages,  the  evidence  for  the 
hearing  was  thereupon  taken  by  interrogatories  written 
down  beforehand  upon  paper  and  administered  to  the  wit- 
nesses in  private  before  an  examiner  or  commissioner.  At 
this  meeting  none  of  the  parties  were  allowed  to  be  present, 
either  by  themselves  or  their  agents,  and  the  examiner  him- 
self was  sworn  to  secrecy.  If  cross-examined  at  all  (for 
cross-examination  under  such  conditions  was  of  necessity 
somewhat  of  a  farce),  the  witnesses  could  only  be  cross-exam- 
ined upon  written  inquiries  prepared  equally  in  advance  by 
a  counsel  who  had  never  had  the  opportunity  of  knowing 
what  had  been  said  during  the  examination-in-chief.  If  the 
examination  was  in  the  country,  it  took  place  at  some  inn 
before  the  comissioner  and  his  clerk,  the  process  seldom  cost- 
ing less  than  60L  or  70Z.  It  often  lasted  for  days  or  weeks, 
at  the  end  of  which  its  mysterious  product  was  sealed  up  and 
forwarded  to  London.  On  the  day  of  the  publication  of  the 
depositions  copies  were  furnished  to  the  parties  at  their  own 
expense;  but,  from  that  moment,  no  further  evidence  was 
admissible,  nor  could  any  slip  in  the  proofs  be  repaired,  ex- 
cept by  special  permission  of  the  court,  when,  if  such  leave 
was  granted,  a  fresh  commission  was  executed  with  the  same 
formalities  and  in  the  same  secret  manner  as  before.  The 
expense  of  the  pleadings,  of  the  preparation  for  the  hearing, 


526        IV.     THE    NINETEENTH    CENTURY 

and  of  the  other  stages  of  the  litigation  may  be  imagined, 
when  we  recollect  that  it  was  a  necessary  maxim  of  the  Court 
of  Chancery  that  all  parties  interested  in  the  result  must  be 
parties  to  the  suit.  If,  for  example,  relief  was  sought 
against  a  breach  of  trust,  all  who  were  interested  in  the 
trust  estate  had  to  be  joined,  as  well  as  all  who  had  been 
privy  to  the  breach  of  trust  itself.  During  the  winding 
journey  of  the  cause  towards  its  termination,  whenever  any 
death  occurred,  bills  of  review  or  supplemental  suits  became 
necessary*  to  reconstitute  the  charmed  circle  of  litigants 
which  had  been  broken.  On  every  such  catastrophe  the 
plaintiff  had  again  to  begin  wearily  to  weave  his  web,  liable 
on  any  new  death  to  find  it  unravelled  and  undone.  It 
was  satirically  observed  that  a  suit  to  which  fifty  defendants 
were  necessary  parties  (a  perfectly  possible  contingency) 
could  never  hope  to  end  at  all,  since  the  yearly  average  of 
deaths  in  England  was  one  in  fifty,  and  a  death,  as  a  rule, 
threw  over  the  plaintiff's  bill  for  at  least  a  year.  The 
hearing  in  many  cases  could  not  terminate  the  cause.  Often 
inquiries  or  accounts  were  necessary,  and  had  still  to  be 
taken  under  the  supervision  of  a  master.  Possibly  some 
issue  upon  the  disputed  facts  required  to  be  sent  for  trial 
at  the  assizes,  or  a  point  of  law  submitted  to  a  common  law 
court.  In  such  cases,  the  verdict  of  the  jury,  or  the  opinions 
of  the  court  so  taken,  in  no  way  concluded  the  conscience 
of  the  Court  of  Chancery.  It  resumed  charge  of  the  cause 
again,  when  the  intermediate  expedition  to  the  common  law 
was  over,  and  had  the  power,  if  it  saw  fit,  to  send  the  same 
issue  to  a  new  trial,  or  to  disregard  altogether  what  had 
been  the  result.  In  a  case  which  was  heard  in  February 
1830,  there  had  been  seven  trials,  three  before  judges  and 
four  before  the  Chancellor,  at  the  close  of  which  the  suit 
found  its  way  upwards  to  the  House  of  Lords.  When  a 
cause  had  reached  its  final  stage  —  when  all  inquiries  had 
been  made,  all  parties  represented,  all  accounts  taken,  all 
issues  tried  —  justice  was  done  with  vigour  and  exactitude. 
Few  frauds  ever  in  the  end  successfully  ran  the  gauntlet  of 
the  Court  of  Chancery.  But  the  honest  suitor  emerged 
from  the  ordeal  victorious  rather  than  triumphant,  for  too 


16.     BOW  EN:    THE    VICTORIAN    PERIOD    527 

often  he  had  been  ruined  by  the  way.  Courts  where  ulti- 
mate justice  is  achieved,  but  where  delay  and  expense  reign 
supreme,  became  at  last  a  happy  hunting-ground  for  the 
fraudulent.  The  hour  for  reform  has  struck  when  the  law 
can  be  made  an  instrument  of  abuse. 

We  must  not  make  a  scarecrow  of  the  law, 
Setting  it  up  to  fear  the  birds  of  prey, 
And  let  it  keep  one  shape  till  custom  make  it 
Their  perch  and  not  their  terror. 

With  all  its  distinction  and  excellence,  the  Court  of  Equity 
was  thus  practically  closed  to  the  poor.  The  middle  classes 
were  alarmed  at  its  very  name,  for  it  swallowed  up  smaller 
fortunes  with  its  delays,  its  fees,  its  interminable  paper 
processes.  The  application  of  such  a  procedure  to  the  large 
class  of  transactions,  where  no  fact  was  in  dispute,  and  only 
the  careful  administration  of  an  estate  required,  was  a  cruel 
burden  upon  property.  A  large  portion  of  the  cases  before 
the  Court  of  Chancery  had  "  nothing  of  hostility  and  very 
little  of  contentious  litigation  in  them."  Trusts,  it  may  be, 
had  to  be  administered,  obscure  wills  or  deeds  to  be  inter- 
preted, assets  of  a  deceased  person  to  be  got  in,  classes 
ascertained,  creditors  paid.  Though  nobody  wished  for  war, 
yet  all  the  forms  of  war  had  to  be  gone  through  —  the 
plaintiff  and  the  various  defendants  drew  out  the  pleadings 
in  battle  array,  interrogated  and  answered,  took  evidence 
upon  commission,  examined  and  cross-examined  upon  paper. 
"  It  is  a  matter  of  frequent  occurrence  in  court,"  say  the 
Chancery  Commissioners  of  1851,  "  to  see  cases  encumbered 
with  statements  and  counter-statements,  evidence  and 
counter-evidence,  with  which  the  parties  have  for  years  been 
harassing  each  other,  although  there  has  been  throughout 
no  substantial  dispute  as  to  the  facts,  and  although  the  real 
question  lies  in  a  very  narrow  compass,  and  would  probably 
have  been  evolved  in  the  first  instance  if  the  court  had  had 
the  power  summarily  to  ascertain  and  deal  with  the  facts. 

The  judges  of  the  court  were  the  Lord  High  Chancellor 
(who  then,  as  now,  was  a  political  officer  and  changed  with 
every  change  of  Ministry) ;  the  Master  of  the  Rolls  stood 


528        IV.     THE   NINETEENTH   CENTURY 

next  in  dignity ;  last  came  the  Vice-Chancellor  of  England 
—  a  judge  who  in  1813  had  been  created  to  relieve  the 
pressure.  Some  equity  work  was  also  done  by  the  Chief 
Baron,  or,  in  his  stead,  a  puisne  baron  sitting  on  the  equity 
side  of  the  Exchequer;  but  this  could  only  be  during  a 
limited  portion  of  the  year.  The  appellate  system  was 
defective  in  the  extreme.  The  Chancellor  sat  singly  on 
appeals  from  the  Vice-Chancellor  of  England  and  from  the 
Master  of  the  Rolls  (whose  inferior  in  the  science  of  equity 
he  easily  might  be),  and  presided  in  the  House  of  Lords 
over  the  hearing  of  appeals  from  himself  —  a  position  the 
less  satisfactory  inasmuch  as,  owing  to  the  imperfect  con- 
stitution of  that  august  tribunal,  the  Chancellor  was  very 
often  its  ruling  spirit.  These  appellate  functions  left  him 
not  too  much  time  to  bestow  on  his  own  duties  as  a  Chancery 
judge  of  first  instance.  To  a  court  so  loaded  with  procedure 
and  so  undermanned  in  its  judicial  strength,  the  Chancery 
business  of  this  kingdom,  contentious  or  non-contentious, 
metropolitan  or  provincial,  all  flowed.  A  formidable  list 
of  arrears  naturally  blocked  the  entrance  of  the  Temple 
of  Equity.  At  the  beginning  of  January  1839,  556  causes 
and  other  matters  were  waiting  to  be  heard  by  the  Chan- 
cellor and  the  Vice-Chancellor.  Those  at  the  head  of  the  list, 
excluding  all  which  had  been  delayed  by  accidental  circum- 
stances alone,  had  been  set  down  and  had  been  ripe  and  ready 
for  hearing  for  about  three  years.  Three  hundred  and 
three  causes  and  other  matters  were  in  like  manner  waiting 
to  come  on  before  the  Master  of  the  Rolls.  Those  at  the 
head  of  his  list  had  been  standing  about  a  year  and  a  half. 
The  total  amount  of  causes  set  down  and  to  be  heard  was 
859,  and  it  was  facetiously  observed  that  a  greater  arrear 
would  probably  never  appear  in  the  lists  of  the  Court  of 
Chancery  —  seeing  that  it  had  become  wholly  useless  to  enter 
any  cause  which  was  not  to  be  brought  on  out  of  its  turn  as 
a  short  or  consent  cause.  Since  in  each  suit  there  were  on 
an  average  two  hearings,  each  destined  to  be  separated  by 
a  period  of  something  like  two  years,  it  was  obvious  that, 
in  even  the  most  ordinary  litigation  —  such,  for  example, 
as  that  which  involved  the  payment  of  debts  or  legacies  out 


16.     BOWEN:    THE    VICTORIAN    PERIOD   529 

of  a  deceased  man's  estate  —  four  years  must  be  wasted  in 
absolute  inactivity,  over  arid  above  any  delays  that  might 
occur  in  taking  accounts  or  prosecuting  inquiries.  If,  as 
seemed  possible  to  skilled  observers  of  the  day,  the  Chancellor 
should  prove  unable  to  do  more  than  keep  pace  with  his 
appellate  work,  it  would  be  —  so  they  calculated  —  six  years 
before  the  last  in  the  list  of  1839  came  on  for  hearing  even 
on  its  first  stage;  if  a  second  hearing  was  required,  thirteen 
years  or  more  would  elapse  before  this  was  reached ;  while, 
if  on  the  final  hearing  the  master's  report  was  successfully 
objected  to,  the  long  process -must  begin  de  novo.  "  No  man, 
as  things  now  stand,"  says  in  1839  Mr.  George  Spence,  the 
author  of  the  well-known  work  on  the  equitable  jurisdiction 
of  the  Court  of  Chancery,  "  can  enter  into  a  Chancery  suit 
with  any  reasonable  hope  of  being  alive  at  its  termination, 
if  he  has  a  determined  adversary." 

Attached  to  the  Court  of  Chancery,  performing  a  large 
portion  of  its  functions,  responsible  —  if  we  are  to  believe 
the  torrents  of  criticism  directed  against  them  during  the 
earlier  portions  of  the  reign  —  for  much  of  its  delay,  were 
the  masters  of  the  Court  of  Chancery,  their  offices,  and 
their  staff  of  clerks.  One  great  blot  upon  this  portion  of 
the  Chancery  system  was  that  it  was  for  all  practical  pur- 
poses under  the  control  and  superintendence  of  nobody  in 
particular.  The  office  of  master  of  the  court  was  one  of 
historical  dignity  and  antiquity.  His  duty  in  1837  was  to 
act  in  aid  of  the  judge,  to  investigate  and  report  upon  such 
matters  as  were  referred  to  him,  including  the  investigation 
of  titles,  to  take  complicated  accounts,  to  superintend  the 
management  of  property  of  infants  and  other  incompetent 
persons  within  the  jurisdiction,  and  to  be  responsible  for 
taxation  of  costs.  A  considerable  portion  of  these  judicial 
and  ministerial  duties  he  discharged  by  deputy.  The  work 
was  done  in  private  with  closed  doors,  removed  from  the 
healthy  publicity  which  stimulates  the  action  of  a  judge. 
There  was  little  practical  power  to  expedite  proceedings  or 
force  on  the  procrastinating  litigant.  At  the  beginning  of 
the  reign,  complaints  were  loud  both  as  to  the  expense 
and  the  delays  in  the  masters'  offices;  and  one  of  the  best 


530         IV.     THE    NINETEENTH    CENTURY 

informed  Chancery  lawyers  of  that  day  recorded  it  as  his 
opinion,  in  the  year  1839,  that,  with  proper  regulations  in 
those  offices,  nearly  double  the  quantity  of  business  might  be 
done  and  with  greater  promptitude.  The  Chancery  judges 
at  this  <period  only  sat  in  open  court,  and  did  not  despatch 
business  at  chambers,  and  the  great  pressure  of  arrears 
and  the  want  of  a  chamber  jurisdiction  caused  a  good  deal 
to  be  shunted  upon  the  master's  office  with  which  the  judge 
himself  would  have  been  the  best  person  to  deal.  Much  legal 
literature  during  the  beginning  of  the  reign  was  devoted  to 
attacking  and  defending  the  institution  of  the  masters  in 
Chancery ;  but  when  at  a  later  period  it  fell,  it  fell  with  the 
general  assent  of  the  legal  world. 

A  system  of  payment  of  officials  by  fees  is  often  synony- 
mous with  a  system  of  sinecures,  of  monopolies,  of  work 
done  by  deputy,  as  well  as  of  work  protracted  and  delayed. 
To  such  an  epoch  of  administrative  laxity  belonged  the 
origin  of  the  institution  of  the  "  the  six  clerks,"  whose  places 
were  worth  about  1,600Z.  a  year,  and  who  were  in  theory  at 
the  head  of  a  body  of  officers  called  the  "  clerks  in  court." 
Mr.  Edwin  Field,  a  well-known  solicitor  of  position,  in  a 
pamphlet  published  in  1840,  tells  us,  that  although  he  had 
been  almost  daily  in  the  "  six  clerks  "  office  during  a  con- 
siderable part  of  twenty  years,  he  had  never  to  his  knowl- 
edge seen  any  one  of  the  "  six  clerks,"  nor  could  he  conceive 
of  a  solicitor  or  a  solicitor's  clerk  having  any  occasion  to 
see  one  officially.  He  believed  that  most  of  the  "  clerks  in 
court  "  did  not  know  even  by  sight  the  "  six  clerks "  to 
whom  they  were  nominally  attached.  The  "  clerks  in  court  " 
were  officers  who  were  supposed  to  be  irpd^evoi  of  the  suitor 
and  of  the  suitor's  solicitor.  They  were  twenty-eight  or 
thirty  in  number,  and  presided  over  the  copying  of  records, 
the  issue  of  writs,  the  signing  of  consents,  the  service  of 
notices  —  for  notices  were  served  upon  them  by  proxy,  which 
they  then  sent  on  by  post  or  by  messenger  to  the  solicitor 
in  the  cause.  They  also  acted  as  mediators  in  taxing  costs, 
for  which  they  were  paid  by  fees  in  proportion  to  the  length 
of  the  bills  to  be  taxed.  Most  of  this  work,  however  dili- 
gently performed,  was  useless,  for  it  might  have  been  done 


16.     BOWEN:    THE    VICTORIAN    PERIOD   531 

by  the  suitor's  own  solicitor;  but,  useless  as  it  was,  it  was 
lucrative  to  the  clerks  in  court,  and  the  chief  clerk  in  each 
court  received,  it  was  said,  an  income  varying  from  3,OOOJ. 
to  8,OOOZ.  The  chief  argument  in  favour  of  the  institution 
was  that  the  clerks  in  court  were  the  repositories*  of  the 
practice  of  the  court.  Whether  they  were  the  pundits  their 
adherents  represented  it  is  difficult  at  this  interval  of  time 
to  decide;  but  an  anecdote  survives,  according  to  which  an 
eminent  Chancery  Queen's  Counsel,  being  consulted  on  a 
point  of  practice,  recommended  his  client  to  ask  his  "  clerk 
in  court,"  and  to  do  exactly  the  opposite  of  what  that  official 
should  advise. 

Such,  roughly  speaking,  were  the  salient  defects  of  the 
Superior  Courts  of  this  kingdom,  in  the  year  1837.  To 
attempt  on  the  present  occasion  to  follow  the  changes  as 
one  by  one  they  have  been  made,  would  be  to  lose  oneself 
and  to  drown  the  reader  in  a  sea  of  detail  and  of  technicality. 
But,  from  the  above 'outline,  it  will  not  be  difficult  for  any- 
one to  determine  what  kind  of  shape  any  legal  reform  was 
bound  to  take  that  was  to  be  worthy  of  the  name.  In  the 
first  place,  the  distinction  between  the  Chancery  and  Common 
Law  Courts  required  to  be  swept  away,  except  so  far  as 
it  was  founded  on  a  natural  division  of  labour.  The 
Common  Law  and  the  Chancery  Court  each  demanded  to 
be  clothed  with  complete  and  independent  powers,  and  ren- 
dered competent  to  do  in  every  individual  instance  full  and 
perfect  justice  within  its  own  four  walls.  The  law  and  the 
equity  which  were  to  be  administered  needed  to  be  made  sim- 
ilar in  each,  the  rights  recognised  by  the  one  to  be  the  same 
as  those  enforced  by  the  other;  the  remedies  given  to  be 
identical  and  in  both  final.  The  law  of  evidence  at  common 
law  still  laboured  under  the  terrible  absurdity  which  declined 
to  permit  of  evidence  from  the  parties  to  the  action.  A  suit 
in  Chancery  had  yet  to  be  relieved  of  the  mass  of  paper 
which  swamped  it,  oral  examination  of  parties  and  witnesses 
to  be  introduced,  and  both  party  and  witness  brought  face 
to  face  with  the  judge  who  was  to  decide  the  cause.  Tech- 
nicalities on  either  side  of  Westminster  Hall  needed  to  be 
rooted  out,  and  machinery  provided  to  enable  the  opinion 


532        IV.     THE   NINETEENTH   CENTURY 

of  the  courts  to  be  promptly  and  expeditiously  obtained, 
without  useless  preliminaries,  whether  they  took  the  shape 
of  pleadings,  or  commissions,  or  trial.  The  staff  of  Chan- 
cery judges  was  moreover  hopelessly  inadequate,  and  as 
every  Ghancery  judge  sits  singly,  a  satisfactory  system  of 
appeal  in  Chancery  was  essential.  The  offices  of  the  masters 
in  Chancery  and  of  the  clerks  wanted  to  be  overhauled,  the 
progress  of  references  and  accounts  brought  more  directly 
under  the  eye  and  supervision  of  the  judge,  arrears  dealt  with, 
delays  minimised.  Law  reformers  looked  forward,  but  not 
with  too  sanguine  anticipations,  to  some  coming  time,  when 
a  sovereign  of  the  land  might  say,  in  the  language  of  Lord 
Brougham,  that  "  he  found  law  dear  and  left  it  cheap,  found 
it  a  two-edged  sword  in  the  hands  of  craft  and  of  oppres- 
sion, left  it  the  staff  of  honesty  and  the  shield  of  innocence." 
All  of  these  evils,  most  of  the  requisite  remedies  —  both 
for  common  law  and  for  Chancery  —  were  pointed  out  by  the 
legal  profession  fifty  years  ago.  But  it  was  then  the  habit 
in  England  to  advance  slowly  in  the  direction  even  of  neces- 
sary change.  By  degrees,  however,  the  horizon  brightened, 
and  improvement  upon  improvement  became  law.  Six  years 
after  her  Majesty's  accession,  Lord  Denman  —  Chief  Justice 
of  the  Queen's  Bench  and  father  of  the  present  Mr.  Justice 
Denman  —  carried  an  Act  removing  the  archaic  fetter  by 
which  persons  interested  in  the  result  of  an  action  or  suit 
were  disabled  from  becoming  witnesses.  Eight  years  later 
still,  another  statute  rendered  the  parties  to  almost  all  civil 
proceedings  competent  and  compellable  to  give  evidence. 
Commissions  sat  to  inquire  into  the  procedure  of  the  com- 
mon law.  Three  Procedure  Acts,  the  fruit  of  their  labours, 
cleared  it  of  its  technicalities,  improved  its  machinery,  ex- 
tended its  remedies,  and  laid  finally  to  rest  most  of  the 
abuses  above  described.  In  connection  with  this  invaluable 
work  —  which  deserves  from  its  importance  to  be  called  the 
Reformation  of  the  English  Common  Law  —  a  grateful 
country  ought  not  to  forget  the  names  of  Sir  John  Jervis 
(from  1850  to  1856  Chief  Justice  of  the  Common  Pleas); 
of  Mr.  Baron  Martin,  with  whom  law  was  synonymous  with 
shrewd  common  sense;  of  the  late  Sir  Alexander  Cockburn, 


16.     BO  WEN:    THE    VICTORIAN    PERIOD   533 

the  versatile  and  eloquent  Chief  Justice  of  the  Queen's  Bench ; 
of  Lord  Bramwell,  a  great  lawyer  who  lives  to  survey  the 
success  of  his  own  handiwork ;  of  the  late  Mr.  W.  A.  Wal- 
ton ;  of  Mr.  Justice  Willes,  whose  brilliant  and  subtle  learn- 
ing was  lost  to  the  nation  by  an  untimely  death. 

Progress  of  no  less  moment  was  taking  place  in  Chan- 
cery. Trustee  Relief  Acts,  Acts  to  diminish  the  delay  and 
cost,  and  to  amend  the  practice  and  course  of  procedure, 
to  abolish  the  circumlocution  office  of  the  masters,  to  enable 
the  Chancery  judges  to  sit  in  chambers  so  as  to  facilitate 
the  management  of  estates,  and  to  allow  the  opinion  of  the 
court  to  be  obtained  in  a  more  summary  and  less  expensive 
manner,  followed  in  due  course.  Misjoinder  of  plaintiffs* 
ceased  to  be  a  ground  for  dismissal  of  a  suit;  rules  for  clas- 
sifying the  necessary  defendants,  and  for  minimising  their 
number,  were  laid  down.  The  effete  system  of  taking  evi- 
dence disappeared ;  the  pleadings,  the  tajdng  of  accounts,  the 
progress  of  inquiries  were  simplified  and  subjected  to  control. 
The  court  was  enabled  to  do  speedy  justice  without  the  long 
preliminaries  of  a  hearing.  A  code  of  orders  was  drawn  up 
regulating  the  chamber  practice.  The  Chancery  Court  was 
freed  from  the  necessity  of  consulting  the  common  law,  and 
power  was  conferred  upon  it  of  giving  damages  in  certain 
cases  to  avoid  recourse  to  law.  New  Vice-Chancellors  were 
appointed,  and  a  Court  of  Appeal  created,  with  two  Lords 
Justices  and  the  Chancellor  at  its  head.  The  roll  of  names 
connected  with  this  gigantic  reformation  is  long.  Upon 
it  stand  Lord  Cottenham,  her  Majesty's  first  Lord  Chan- 
cellor, and  the  other  Chancellors  of  her  reign.  The  council 
of  the  Incorporated  Law  Society  occupy  a  conspicuous  and 
honourable  position  in  the  van  of  other  law  reformers.  In 
addition  to  these  may  be  mentioned  Lord  Langdale  and  Lord 
Romilly,  Sir  J.  Knight  Bruce,  Sir  George  Turner,  Vice- 
Chancellor  Parker,  Mr.  Justice  Crompton,  the  late  Mr.  Ed- 
win Field,  the  late  Mr.  W.  Strickland  Cookson,  and  the  late 
Lord  Justice  James,  whose  broad  and  lucid  mind  was  till 
recently  an  element  of  strength  in  our  new  Court  of  Appeal, 
and  whose  services  in  the  cause  of  reform,  both  at  law  and 
in  equity,  if  equalled,  have  certainly  not  been  surpassed  by 


534        IV.     THE   NINETEENTH   CENTURY 

any  lawyer  of  modern  times.     "  Multi  praeterea,  quos  f  ama 
obscura  recondit." 

The  sketch  of  English  justice  at  Westminster  Hall  in 
bygone  days  would  hardly  be  complete  if  no  mention  were 
made  of  three  important  courts  which,  during  the  present 
reign,  found  their  way  thither,  and  have  since  followed  the 
fortunes  of  -the  common  law  —  the  Court  of  Admiralty,  the 
Court  of  Probate,  and  the  Court  of  Divorce.  The  Admi- 
ralty in  1837  did  not  enjoy  its  present  powers  or  importance. 
Borrowing  from  abroad  the  procedure  of  the  civilians  and 
the  rules  of  foreign  maritime  law,  confined  for  centuries 
within  the  bounds  of  a  narrow  jurisdiction  by  the  prohibi- 
•  tion  of  the  Court  of  Queen's  Bench,  the  Admiralty  Court 
had  only  been  rescued  from  obscurity  by  the  great  wars  of 
the  reign  of  George  III,  by  the  prize  cases  for  which  it  was 
the  necessary  tribunal,  and  by  the  genius  of  Lord  Stowell. 
But  its  range  still  continued  limited,  and  its  rules  occasion- 
ally conflicted  with  the  rules  of  the  common  law.  The 
spiritual  or  ecclesiastical  courts  of  the  country  from  an 
early  period  had  exercised  authority  in  •  matters  of  testacy 
and  intestacy  as  regarded  personal  estate,  had  issued  pro- 
bates of  the  wills  of  those  who  died  possessed  of  personalty, 
and  letters  of  administration  of  the  estates  of  those  who 
died  without  a  will.  The  bulk  of  the  testamentary  business 
of  the  Ecclesiastical  Courts  was  chiefly  non-«contentious  — 
formal  representative  proceedings  where  no  dispute  arose. 
If  the  validity  of  a  will  or  the  title  to  administer  was  chal- 
lenged, a  suit  became  necessary,  and  to  this  all  parties  in- 
terested were  cited.  A  number  of  spiritual  courts  or  cham- 
bers scattered  through  England  took  cognisance  of  this 
testamentary  procedure  —  the  courts  of  the  Archbishops  of 
Canterbury  and  York,  the  diocesan  courts  of  the  bishops, 
the  archdeacons'  courts,  and  other  tribunals  of  still  more 
limited  jurisdiction.  The  Court  of  Arches,  which  belonged 
to  the  Archbishop  of  Canterbury,  served  as  the  appellate 
centre  for  the  province  of  Canterbury,  and  from  it  a  further 
appeal  lay  to  the  Judicial  Committee  of  the  Privy  Council,  a 
body  that  had  been  recently  substituted  for  the  Court  of 
Delegates  of  Henry  VIII.  Doctors'  Commons  was  the  place 


16.     BOWEN:    THE    VICTORIAN    PERIOD   535 

where  the  principal  ecclesiastical  proceedings  were  held,  and 
a  body  of  advocates  and  proctors  enjoyed  in  it  a  monopoly 
by  which  the  general  profession  was  excluded  from  audience 
and  practice.  All  judges  and  officers  of  the  spiritual  courts 
were  appointed  by  the  prelates,  and  the  other  functionaries 
over  whose  tribunals  they  presided.  They  were  sometimes 
lawyers  of  position,  sometimes  lawyers  of  no  position  at  all, 
sometimes  clergymen,  and  were  usually  paid  by  fees.  Many 
offices  were  granted  in  succession  and  reversion,  deputies 
discharging  the  duties,  of  which  the  emoluments  were  con- 
siderable. The  inefficiency  of  the  judges,  the  variations  of 
practice  and  procedure,  the  expense,  the  delay,  the  fre- 
quently inconsistent  and  mistaken  views  of  law  and  of  fact 
adopted  by  the  different  authorities,  the  anachronism  of  a 
system  which  permitted  civil  rights  to  be  decided  by  judges 
not  appointed  by,  nor  responsible  to,  the  Crown,  and,  finally, 
a  general  sense  that  these  tribunals  were  a  soil  in  which 
abuses  grew  and  flourished,  rendered  their  fall  inevitable. 
The  flavour,  the  air,  the  humorous  absurdity  of  many  abuses 
in  many  branches  of  the  law  have  been  preserved  to  us  by 
the  pen  of  Charles  Dickens.  Writers  of  sentimental  fiction 
not  unfrequently  exercise  their  powers  of  sarcasm  on  the 
subject  of  the  enormities  of  law  by  inventing  for  the  law 
courts  an  imaginary  procedure  which  never  yet  was  seen, 
and  then  denouncing  its  iniquities.  But  the  caricatures  of 
English  law,  at  the  beginning  of  the  reign,  which  Dickens 
has  made  immortal,  are  full  of  the  insight  of  a  great  artist 
—  come  direct  from  the  brain  of  one  who  has  sat  in  court 
and  watched  —  represent  real  scenes  and  incidents  as  they 
might  well  appear  to  the  uninitiated  in  the  "  gallery."  His 
pictures  of  the  Chancery  suit  of  "  Jarndyce  and  Jarndyce ;  " 
of  the  common  jury  trial  of  "  Bardell  v.  Pickwick;  "  of  the 
debtors'  prison,  of  the  beadle,  of  the  constable,  of  the  local 
justice  and  of  the  local  justice's  clerk,  contain  genuine  his- 
tory, even  if  it  is  buried  under  some  extravagance.  In 
"  David  Copperfield  "  he  has  sketched  with  his  usual  felicity 
the  fraternity  of  Doctors'  Commons  and  the  ecclesiastical 
officials  who  thronged  its  purlieus.  Like  so  many  other  of  the 
antiquated  subjects  of  his  satire,  Doctors'  Commons  was  soon 


536        IV.     THE   NINETEENTH   CENTURY 

destined  to  decay.  A  royal  Court  of  Probate  was  established 
in  its  place  at  Westminster  Hall,  with  district  registries 
throughout  the  kingdom  ;  and  the  various  ecclesiastical  juris- 
dictions which  the  new  court  superseded  ceased  to  exist  thence- 
forward, so  far  as  testamentary  causes  were  concerned. 

The  creation  in  1858  of  a  Court  for  Divorce  and  Matri- 
monial Causes  has  been  a  measure,  necessary  no  doubt,  but 
not  productive  of  unmixed  benefit.  Divorce  a  vinculo  matri- 
mowi,  fifty  years  ago,  was  unrecognised  by  English  juris- 
prudence, except  where  it  was  the  result  of  an  Act  of  Parlia- 
ment. The  laxer  law  of  an  exceptional  period  which  followed 
upon  the  English  Reformation  had  long  disappeared,  and 
from  the  close  of  the  seventeenth  century  down  to  the  recent 
statutes  of  our  own  days  no  one  could  be  divorced  otherwise 
than  by  the  Legislature.  After  the  year  1798,  Parliament 
had  declined  to  grant  the  relief  to  any  husband  who  had  not 
previously  obtained  damages  at  law  against  the  adulterer, 
and  prosecuted  a  further  suit  in  the  Ecclesiastical  Courts 
for  a  divorce  a  mensa  et  thoro.  When  a  Divorce  Bill  reached 
the  Commons  from  the  Lords,  the  question  of  adultery  had 
thus  been  tried  three  times  over.  The  practice  was  adopted 
in  1840  of  referring  such  cases  to  a  Select  Committee  of 
nine  members,  who  heard  counsel  and  examined  witnesses. 
This  was  the  fourth  and  not  the  least  expensive  inquiry  of 
all.  A  divorce  in  1837  was  therefore  a  luxury  of  the  wealthy 

—  a  privttegium  beyond  the  reach  of  a  poor  man's  purse. 
Its  average  cost  in  an  ordinary  case  was  estimated  at  from 
1,OOOZ.  to  1,500Z.     An  anecdote  —  timeworn  among  the  bar 

—  relates  that  the  final  stimulus  to  the  change  of  public 
opinion  which  brought  about  reform  was  supplied  by  the 
caustic  humour  of  the  late  Mr.  Justice  Maule.     He  was  try- 
ing for  bigamy  a  prisoner  whose  wife  had  run  away  with 
a  paramour  and  left  him  with  no  one  to  look  after  his  chil- 
dren and  his  home.     "  Prisoner  at  the  bar,"  said  the  judge 
to  the  disconsolate  bigamist,  who  complained  of  the  hardship 
of  his  lot,  "  the  institutions  of  your  country  have  provided 
you  with  a  remedy.     You  should  have  sued  the  adulterer  at 
the  assizes  and  recovered  a  verdict  against  him,  and  then 
taken    proceedings   by   your   proctor   in   the   Ecclesiastical 


16.     BO  WEN:    THE    VICTORIAN    PERIOD   537 

Courts.  After  their  successful  termination,  you  might  have 
applied  to  Parliament  for  a  Divorce  Act,  and  your  counsel 
and  your  witnesses  would  have  been  heard  at  the  Bar  of  the 
House."  "  But,  my  lord,"  pleaded  the  culprit,  "  I  cannot 
afford  to  bring  actions  or  obtain  Acts  of  Parliament;  I  am 
only  a  very  poor  man."  "  Prisoner,"  said  Mr.  Justice  Maule, 
"  it  is  the  glory  of  the  law  of  England  that  it  knows  no  dis- 
tinction between  the  rich  and  the  poor."  The  present  Divorce 
Court,  whatever  the  social  evil  it  has  revealed,  at  least  has 
brought  within  reach  of  the  humble  that  which  was  supposed 
to  be  for  the  public  advantage  in  the  case  of  the  rich.  The 
nation  has  been  fortunate  in  this,  that  a  branch  of  justice 
so  difficult  has  been  administered  in  succession  by  presidents 
of  singular  personal  dignity,  wisdom,  and  discretion. 

To  the  practical  arbitrament  of  the  Courts  of  Common 
Law  was  transferred,  after  no  long  interval,  another  class 
of  cases  of  much  importance  to  the  State  —  the  trials  of  con- 
troverted election  petitions.  At  the  time  when  her  Majesty 
succeeded  to  the  throne,  the  cognisance  of  such  matters  be- 
longed exclusively  to  the  House  of  Commons.  Through  a 
moral  blindness  which  party  politics  occasionally  encourage, 
the  election  committees  of  the  House  had  become  a  tribunal 
as  untrustworthy  as  if  they  had  been  pecuniarily  corrupt. 
The  composition  of  each  committee  proceeded  upon  strictly 
party  lines.  On  the  day  appointed  for  the  ballot  the  friends 
of  the  respective  litigants  were  collected  by  a  "  whip."  Out 
of  a  House  of  a  hundred  members,  thirty-three  names  were 
drawn,  and  these  again  reduced  to  eleven  by  repeated  chal- 
lenges —  a  process  facetiously  known  as  "  knocking  out  the 
brains  of  the  committee."  The  Parliament  court  so  chosen 
had  often  to  decide  difficult  matters  of  law,  on  which  the 
validity  of  votes  or  the  qualification  of  voters  or  of  candi- 
dates in  former  days  might  depend;  often  to  determine 
issues  of  fact  as  to  bribery  or  intimidation.  In  the  result, 
the  sitting  members  were  seated  or  unseated  with  more  regard 
to  the  colour  of  their  politics  than  to  any  merits  of  the  case. 
"  The  tribunal,"  says  Mr.  Charles  Buller  in  1836,  "  is  selected 
under  a  system  by  which  those  who  have  any  professional 
acquirements,  admitted  abilities,  proved  industry  or  marked 


538        IV.     THE   NINETEENTH   CENTURY 

consideration  in  the  political  world  are  too  often  studiously 
excluded  from  it."  "  We  do  not  exaggerate,"  observes  the 
Law  Magazine  of  1837,  "  when  we  say,  that  during  the  last 
two  or  three  sessions  none  but  the  uninitiated  ever  dreamed 
of  supposing  that  the  right  to  a  disputed  seat  would  be  de- 
cided by  the  merits  of  the  case."  In  1838,  a  writer  in  Fraser 
calculates  that  there  had  been  ten  Whig  committees,  and  that 
they  had  decided  in  every  case  in  favour  of  Whig  members. 
In  the  session  of  1838,  twenty-four  Whig  committees,  it  was 
alleged,  had  defeated  petitions  against  twenty  Whigs  and 
unseated  six  Tories,  while  they  had  only  unseated  two  Whigs 
and  dismissed  two  Whig  petitions.  During  the  like  period, 
sixteen  Tory  committees  appeared  to  have  dismissed  peti- 
tions against  four  Tories  and  unseated  eight  Whigs,  while 
two  Tories  only  were  unseated  and  two  Tory  petitions  were 
unsuccessful.  Before  the  system  was  ultimately  abolished  a 
growing  sense  of  public  duty  had  substantially  curtailed 
its  gravest  abuses,  but  the  judicial  vindication  of  electoral 
purity  ought,  like  Caesar's  wife,  to  be  above  suspicion. 

The  House  of  Commons,  while  reserving  to  itself  the 
formal  shadow  of  supreme  jurisdiction,  has  at  last  delegated 
to  the  judges  of  the  land  the  duty  of  dealing  with  these 
election  controversies;  and,  in  addition  to  the  exacter  justice 
thus  secured,  it  is  some  advantage  to  the  public  that  election 
petitions  are  now  tried  in  the  locality  where  the  transactions 
have  occurred.  A  similar  change  as  regards  a  variety  of 
private  Bills,  whose  success  or  failure  ought  to  depend  upon 
evidence  alone,  is  only  as  yet  in  the  air.  Private  Bills  con- 
tinue to  be  referred  to  Select  Committees  of  five  —  an  insti- 
tution which  has,  however,  undergone  considerable  improve- 
ments during  the  reign.  There  is  reason  to  hope,  that  the 
functions  imposed  upon  the  judges  of  dealing  with  electoral 
petitions  are  destined  as  time  progresses  to  became  light. 
After  the  hotly  contested  election  of  1886  only  one  single 
election  petition  was  set  down  for  trial  in  her  Majesty's 
English  courts,  where  the  election  turned  upon  a  scrutiny. 
All  these  jurisdictions,  all  these  scattered  duties,  as  the  reign 
progressed  were  gathered  together  by  degrees  and  entrusted 
to  courts  sitting  in  Westminster  Hall. 


16.     BOWEN:    THE    VICTORIAN    PERIOD   539 

At  "last  the  final  blow  was  given  to  the  old  system  which 
had  divided  equity  from  law.  In  1873,  Lord  Selborne,  as 
Chancellor,  with  the  assistance  of  Lord  Cairns  and  aided 
by  the  Attorney-General  and  the  Solicitor-General  of  the 
day  (the  present  Lord  Coleridge  and  the  late  Sir  G.  Jessel), 
carried  successfully  through  Parliament  a  measure  which, 
supplemented  by  still  later  legislation,  has  swept  away  the 
old  divisions.  A  "  Supreme  Court  "  of  Judicature  —  a  mod- 
ern variety  of  the  ancient  Aula  Regia  —  has  been  substi- 
tuted, each  chamber  or  department  of  which  administers 
the  same  principles  of  equity  and  law,  and  is  governed  by  a 
common  and  simple  code  of  procedure.  Some  older  lawyers 
still  cast  back  at  times  a  "  longing,  lingering  "  look  to  the 
ancient  courts  of  Westminster  with  their  glories  and  their 
historical  associations,  and  to  the  former  Court  of  Chancery 
with  all  its  genius  and  its  faults;  but  by  no  less  trenchant 
a  revolution  could  the  reforms  of  the  reign  have  been  com- 
pleted and  the  organisation  of  the  law  adapted  to  the  neces- 
sities of  this  great  kingdom.  The  scheme  in  its  outline  was 
the  outcome  of  the  labour  of  a  Commission  of  1869,  the 
names  of  whose  members  are  appended  below.1  All  imper- 
fections of  remedy,  all  conflicts  of  jurisdiction,  were  at  last 
to  cease,  while  such  a  classification  of  business  was  still  re- 
tained in  the  different  branches  of  the  Supreme  Court  as 
common  sense  required.  It  took  a  few  years  of  further 
legislative  arrangement  before  the  plan  thus  adopted  ripened 
into  its  present  precise  form;  but  the  details  of  this  process 
may  on  the  present  occasion  be  passed  by,  in  order  to  fix 
our  attention  on  the  broad  result.  The  "  Supreme  Court  '* 
as  constituted  in  1887  is  made  up  of  the  High  Court  of 
Justice  and  the  Court  of  Appeal.  The  High  Court  contains 
several  divisions.  The  largest  in  size  is  the  Queen's  Bench, 

'Lord  Cairns,  Lord  Hatherley,  Sir  W.  Erie  (Chief  Justice  of  the 
Common  Pleas),  Sir  Jas.  Wilde  (now  Lord  Penzance),  Sir  R.  Phillimore, 
Mr.  G.  Ward  Hunt,  Mr.  Childers,  Lord  Justice  James,  Mr.  Baron 
Bramwell  (now  Lord  Bramwell),  Mr.  Justice  Blackburn  (now  Lord 
Blackburn),  Sir  Montague  Smith,  Sir  R.  Collier  (afterwards  Lord 
Monkswell),  Sir  J.  Coleridge  (now  Lord  Coleridge),  Sir  Roundell 
Palmer  (now  Lord  Selborne),  Sir  John  Karslake,  Mr.  Quain  (after- 
wards Mr.  Justice  Quain),  Mr.  H.  Rothery,  Mr.  Ayrton,  Mr.  W.  G. 
Bateson,  Mr.  John  Hollams,  Mr.  Francis  D.  Lowndes. 


540         IV.     THE    NINETEENTH    CENTURY 

consisting  of  fourteen  judges  and  the  Lord  Chief  Justice  of 
England.  It  represents  the  old  Queen's  Bench,  Exchequer, 
and  Common  Pleas  rolled  into  a  single  tribunal;  for  the 
Exchequer,  with  its  Chief  Baron,  and  the  Common  Pleas, 
with  its  Chief  Justice,  exist  no  more.  The  Queen's  Bench 
tries,  either  by  jury  or  by  a  single  judge,  any  cause  which 
does  not  belong  to  those  special  classes  of  business  which  for 
convenience  are  assigned  to  other  departments.  It  conducts 
the  assizes,  civil  and  criminal,  all  over  England ;  furnishes 
judges  who  preside  at  the  Old  Bailey;  is,  with  unimportant 
exceptions,  the  final  court  of  criminal  jurisdiction;  acts  as 
a  court  of  review  on  appeal  from  the  judgments  on  matters 
of  law  of  the  county  courts;  controls  the  action  of  all  in- 
ferior tribunals,  wields  all  the  powers  and  authority  of  the 
former  Common  Law  Courts,  and  administers  equity  as  well 
as  law.  A  staff  of  fifteen  to  eighteen  masters  are  attached  to 
it,  who  exercise  judicial  functions  in  interlocutory  matters, 
report  on  inquiries  referred  to  them,  preside  at  taxation  of 
costs,  and  supervise  the  machinery  of  the  central  office  and  its 
clerks.  The  next  branch  of  the  High  Court  is  the  Chancery 
Division,  consisting  of  five  judges,  who  sit  singly  —  a  chief 
clerk  and  a  body  of  clerks  working  under  each.  On  the  prin- 
ciple of  division  of  labour,  the  Chancery  Division  attracts 
to  itself  administrative  and  other  business,  for  which  it  has  a 
special  organisation  and  aptitude ;  but  its  jurisdiction  is  com- 
plete and  not  confined  to  any  particular  subject-matter,  and 
it  administers  law  as  well  as  equity.  Third  comes  the  Probate, 
Admiralty,  and  Divorce  Division  (under  a  president  and  an- 
other single  judge),  independent  in  itself,  managing  the  Ad- 
miralty, divorce,  and  probate  business  of  the  country  and  con- 
trolling the  district  registries  throughout  England.  From 
the  judgments  and  orders  of  all  branches  of  the  High  Court 
alike  an  appeal  (except  in  ordinary  criminal  matters)  lies 
to  the  Court  of  Appeal,  composed  of  the  Master  of  the  Rolls 
and  five  Lords  Justices ;  the  Lord  Chancellor,  the  Lord  Chief 
Justice  of  England,  and  the  President  of  the  Probate,  Di- 
vorce, and  Admiralty  Division  ranking  as  ex-officio  members. 
The  decisions  of  the  Court  of  Appeal  are  only  reviewable 
by  the  House  of  Lords  —  a  tribunal  that  has  been  strength- 


16.     BOWEN:    THE    VICTORIAN    PERIOD   541 

ened  by  the  creation  of  law  lords,  and  to  which  the  appeal 
business  of  the  Privy  Council  (at  present  the  court  of  appeal 
from  the  colonies  and  the  ecclesiastical  courts)  is  destined 
in  a  few  years  to  be  virtually,  though  not  perhaps  nominally, 
transferred. 

A  complete  body  of  rules  —  which  possesses  the  great 
merit  of  elasticity,  and  which  (subject  to  the  veto  of  Par- 
liament) is  altered  from  time  to  time  by  the  judges  to  meet 
defects  as  they  appear  —  governs  the  procedure  of  the  Su- 
preme Court  and  all  its  branches.  In  every  cause,  whatever 
its  character,  every  possible  relief  can  be  given  with  or  with- 
out pleadings,  with  or  without  a  formal  trial,  with  or  with- 
out discovery  of  documents  and  interrogatories,  as  the  nature 
of  the  case  prescribes  —  upon  oral  evidence  or  upon  affi- 
davits, as  is  most  convenient.  Every  amendment  can  be  made 
at  all  times  and  all  stages  in  any  record,  pleading,  or  pro- 
ceeding that  is  requisite  for  the  purpose  of  deciding  the  real 
matter  in  controversy.  It  may  be  asserted  without  fear  of 
contradiction  that  it  is  not  possible  in  the  year  1887  for 
an  honest  litigant  in  her  Majesty's  Supreme  Court  to  be 
defeated  by  any  mere  technicality,  any  slip,  any  mistaken 
step  in  his  litigation.  The  expenses  of  the  law  are  still  too 
heavy,  and  have  not  diminished  pari  passu  with  other  abuses. 
But  law  has  ceased  to  be  a  scientific  game  that  may  be  won 
or  lost  by  playing  some  particular  move.  Simultaneously 
with  this  culminating  measure  of  reform,  we  have  seen  the 
creation  of  one  central  Palace  of  Justice  for  the  trial  of  all 
civil  causes.  On  December  4,  1882,  the  judges  of  the  land, 
with  the  Chancellor  at  their  head,  bade  good-bye,  in  long* 
procession,  to  Westminster  Hall,  and  followed  in  her  Maj- 
esty's train  as  she  opened  in  State  the  present  Royal  Courts 
of  Justice.  The  old  order  was  over  and  the  new  had  begun. 
Taking  farewell  of  a  profession  which  he  long  adorned,  the 
late  Vice-Chancellor  Bacon  —  who  has  himself  been  a  par- 
taker in  the  great  movement  we  have  endeavoured  to  narrate 
—  thus  summed  up  in  last  November  his  own  experience  of 
the  legal  achievements  of  the  reign.  "  I  have  seen,"  he  said, 
"  many  changes,  all  of  which  have  had  the  effect  of  simpli- 
fying and  perfecting  the  administration  of  the  law,  to  the 


542        IV.     THE    NINETEENTH    CENTURY 

great  advantage  of  our  ever-increasing  community,  to  the 
protection  of  civil  rights,  to  the  encouragement  of  arts  and 
commerce,  and  the  general  prosperity  of  the  realm."  The 
name  of  one  happily  still  living,  and  the  name  of  one  who 
is  deplored  in  more  than  one  department  of  the  State,  will 
always  be  connected  with  the  final  consolidation  of  the  Eng- 
lish judicature.  To  the  co-operation  for  the  public  weal 
of  Lord  Selborne  and  of  the  late  Lord  Cairns  —  rivals  in 
politics,  but  fellow-workers  in  the  reform  of  the  law  —  is 
chiefly  due  the  completeness  of  the  contrast  between  the  Eng- 
lish judicial  systems  of  1887  and  of  1837. 

Justice  would  fail  in  one  of  her  chief  attributes  if  she 
concentrated  all  her  attention  upon  the  superior  courts  and 
made  no  effort  to  bring  English  law  within  the  reach,  so 
to  speak,  of  every  subject  of  the  Crown.  It  is  a  striking 
reflection,  that  the  system  of  county  courts,  which  now 
forms  so  essential  a  part  of  our  institutions  under  the  man- 
agement of  a  body  of  judges  whose  merits  it  would  be  pre- 
sumptuous to  praise,  is  entirely  a  growth  of  the  present 
reign.  The  ancient  county  court  of  the  common  law  (per- 
haps the  oldest  tribunal  of  the  country)  had  long  since  fallen 
for  all  practical  purposes  into  complete  disuse.  Since  the 
time  of  James  I,  local  "  courts  of  request,"  designed  for  the 
recovery  of  trifling  debts  and  created  by  local  Acts  of  Par- 
liament, with  a  limited  jurisdiction  only,  had  gradually 
become  common,  but  were  wholly  inadequate  to  the  wants  of 
the  public.  At  her  Majesty's  accession  there  was  no  tribunal 
in  existence  that  discharged  the  duties  or  possessed  the  ju- 
risdiction of  the  present  county  court.  The  year  1848 
sounded  the  knell  of  the  old-fashioned  and  comparatively 
useless  courts  of  request.  In  their  place  was  built  up  slowly, 
by  a  dozen  or  more  successive  statutes,  the  county  court  of 
to-day.  Five  hundred  districts  have  been  formed,  with  about 
fifty-nine  circuits  —  a  single  judge,  as  a  rule,  being  annexed 
to  each  circuit.  Every  judge  in  the  matters  submitted  to  his 
cognisance  administers  law  and  equity  concurrently  —  is  a 
judge  of  bankruptcy  outside  the  jurisdiction  of  the  London 
Bankruptcy  Court,  and  in  certain  selected  districts  an  Ad- 
miralty judge  as  well.  The  procedure  has  been  rendered 


16.     BOWEN:    THE    VICTORIAN    PERIOD   543 

simple  and  rapid;  but  its  details  and  the  limits  of  the  juris- 
diction to  which  it  belongs,  though  matters  of  considerable 
practical  importance,  are  beyond  the  range  of  this  paper. 
If  the  population  of  the  country  are  at  last  furnished  at 
their  very  doors  with  justice,  cheap,  excellent,  and  expedi- 
tious, they  have  to  thank  the  county  court  legislation  of  the 
last  forty  years,  and  the  men  who  have  carried  out  its  provi- 
sions in  the  provinces. 

The  progress  of  the  general  law  relating  to  the  enforce- 
ment of  debts  is  a  subject  interwoven  with  the  administra- 
tion of  the  law  both  in  our  supreme  and  in  our  provincial 
courts.  Ancient  and  modern  history  are  alike  full  of  the 
record  of  hard  codes  pressing  severely  upon  debtors.  In 
England,  down  to  within  living  memory,  our  law  of  debtor 
and  creditor  reposed  upon  the  persistent  notion  that  in- 
solvency was  a  crime.  Paramount  necessities  of  trade  and 
commerce  had  taught  us,  indeed,  the  distinction  between  the 
case  of  the  insolvent  trader  who  was  unable  to  fulfil  his  com- 
mercial engagements,  and  that  of  the  ordinary  debtor  who 
had  no  such  mercantile  excuse.  To  the  debtor  who  was  not 
in  trade,  and  who  failed  to  liquidate  his  debt,  the  English 
law  applied  the  sharp,  stern  corrective  of  imprisonment.  It 
sent  him  to  gaol  —  till  he  found  security  or  paid  —  before 
the  debt  was  even  proved,  and  on  a  mere  affidavit  by  an 
alleged  creditor  that  it  was  owing.  After  verdict  and  judg- 
ment, the  unsatisfied  party  had  an  absolute  option  of  taking, 
in  satisfaction,  the  body  of  his  debtor.  Traders  to  whom 
the  bankrupt  law  applied  might  escape  by  making  full  dis- 
closure and  complete  surrender  of  their  effects  for  distri- 
bution among  their  general  creditors ;  and,  owing  to  the 
demands  of  the  commercial  world,  the  law  of  bankruptcy 
since  the  reign  of  Henry  VIII  had  been  the  subject  of  con- 
stant amendment.  But  the  general  law  of  insolvency  con- 
tinued in  its  barbarous  condition,  owing  in  part  perhaps 
to  the  legal  difficulty  of  enforcing  money  debts  against 
landed  property.  Occasional  Insolvent  Acts  from  time  to 
time  were  passed  for  the  relief  upon  terms  of  insolvents  who 
might  apply  for  their  discharge,  and  ultimately  a  perma- 
nent Insolvent  Court  was  established  to  deal  with  their  peti- 


544        IV.     THE    NINETEENTH    CENTURY 

tions.  Yet  it  was  not  till  after  the  beginning  of  the  reign 
that  arrest  upon  mesne  process  was  abolished,  and  impris- 
onment in  execution  of  final  judgments  continued  to  be  the 
law  till  a  far  more  recent  date.  From  October  1,  1838,  to 
December  1,  1839  (a  period  of  fourteen  months),  3,905 
persons  were  arrested  for  debt  in  London  and  the  provinces, 
and  of  those  361  remained  permanently  in  gaol  in  default 
of  payment  or  satisfaction.  Out  of  the  3,905  debtors  so 
arrested,  dividends  were  obtained  in  199  cases  only.  The 
debtor  who  was  left  in  durance  vile  shared  a  common 
prison  with  the  murderer  and  the  thief,  and  the  spectacle 
of  misfortune  linked  in  this  manner  to  the  side  of  crime 
was  as  demoralising  as  it  was  cruel.  The  following  l  is  the 
account  given  in  1844  by  a  Government  inspector  of  the 
condition  of  the  debtors  lodged  in  Kidderminster  Gaol, 
which  was  read  to  the  House  of  Commons  by  Sir  James 
Graham :  — 

"  At  the  time  when  I  visited  the  gaol  there  were  six  male 
debtors  confined  under  executions  from  the  Court  of  Requests. 
They  occupied  a  single  room  paved  with  bricks,  the  extent 
of  which  is  twelve  feet  in  length  by  twelve  in  breadth,  which 
is  destitute  of  table,  bed,  seat,  or  any  other  species  of  furni- 
ture whatever;  and  there  is  no  fireplace  or  any  means  of 
lighting  a  fire.  A  heap  of  straw  is  scattered  over  the  floor 
of  half  the  room,  on  which  the  prisoners  sleep,  for  they  have 
no  other  bedclothes,  and  from  time  to  time  the  worst  part 
of  the  straw  is  removed  and  better  substituted  for  it.  The 
privy  occupies  a  corner  of  the  room,  but,  from  the  oppres- 
siveness of  the  stench,  the  prisoners  have  been  allowed  to 
close  it  with  straw.  The  yard  into  which  the  room  opens 
measures  thirteen  feet  in  length  by  twelve  feet  in  breadth, 
and  is  so  badly  drained  that  in  wet  weather  the  water  lies 
in  it  to  such  a  degree  as  to  confine  the  prisoners  entirely  to 
their  room.  This  yard  is  closed  in  by  a  high  wall,  sur- 
mounted by  an  iron  lattice.  The  prisoners  are  very  dirty, 
as  they  never  take  off  their  clothes,  and  are  allowed  only 
two  jugfuls  of  water  per  day  for  drinking  and  washing 
themselves.  Their  diet  consists  of  an  allowance  of  the  quar- 
1  Hansard,  vol.  Ixxvi,  p.  1711. 


16.     BOWEN:    THE    VICTORIAN    PERIOD   545 

ter  part  of  a  quartern  loaf  of  bread  per  day,  but  their 
friends  are  permitted  to  bring  them  any  other  articles  of 
food  while  the  officer  is*there.  In  case  of  illness  there  is 
no  means  of  getting  assistance,  for,  though  the  prisoners 
might  succeed  in  making  themselves  heard  by  the  inhab- 
itants of  the  neighbourhood,  they  could  not  afford  any  help 
without  the  beadle,  who  lives  in  a  remote  part  of  the  town. 
Female  prisoners,  if  confined  there,  were  deprived  of  all  sep- 
arate accommodation,  and  cannot  be  visited  by  their  own 
sex  in  cases  of  sickness,  except  while  the  officer  is  there." 

The  leading  idea  of  the  law  in  the  case  of  the  ordinary 
insolvent  was  to  seize  his  person.  The  principle  of  the  law 
of  bankruptcy  with  reference  to  a  trader  is  to  confiscate  his 
property  for  the  benefit  of  creditors.  But  during  the  first 
thirty  years  of  the  century,  the  English  bankruptcy  law  had 
been,  and  at  the  beginning  of  the  present  reign  still  was, 
a  discredit  to  a  great  country  whose  fleets  covered  the  seas 
and  whose  commerce  ranged  the  globe.  Scotland  and  sev- 
eral Continental  nations  were  far  in  advance  of  us.  England 
alone  among  her  commercial  rivals  still  kept  to  the  mis- 
chievous doctrine  that  mercantile  insolvency  was  to  be  rooted 
out  as  if  it  were  an  offence  against  society.  The  bankruptcy 
law  down  to  within  fifty  years  ago  maintained,  accordingly, 
a  procedure  the  severity  of  which  from  this  distance  of  time 
appears  monstrous.  The  one  mitigating  feature  about  it  lay 
in  the  fact  that  the  great  commercial  world,  alienated  and 
scared  by  the  divergence  of  the  English  bankruptcy  law 
from  their  own  habits  and  notions  of  right  and  wrong, 
avoided  the  court  of  bankruptcy  as  they  would  the  plague. 
The  important  insolvencies  which  had  been  brought  about  by 
pure  mercantile  misfortune  were  administered  to  a  large 
extent  under  private  dgeds  and  voluntary  compositions, 
which,  since  they  might  be  disturbed  by  the  caprice  or  malice 
of  a  single  outstanding  'creditor,  were-  always  liable  to  be 
made  the  instruments  of  extortion..  "  To  the  honest  insolvent 
the  bankruptcy  court  was  a  terror."  To  the  evildoer  it 
afforded  means  of  endlessly  delaying  his  creditors,  while  the 
enormous  expenses  of  bankruptcy  administrations  rendered 
it  the  interest  of  few  to  resort  to  the  remedy,  except  with 


546        IV.     THE   NINETEENTH   CENTURY 

the  object  of  punishing  the  fraudulent  or  vexing  the  unfor- 
tunate. 

The  legal  illusion  that  a  debtor  pfima  facie  must  be  wicked, 
produced  in  the  bankruptcy  law,  as  indeed  was  natural,  a 
curious  procedure  which  began  in  secrecy  and  ex  parte 
processes,  and  every  stage  of  which  was  capable  of  being 
abused.  The  declaration  in  1831  of  a  Lord  Chancellor, 
made  from  his  place  in  Parliament,  that  "  ever  since  he 
had  been  acquainted  with  the  profession  he  had  uniformly 
heard  two  evils  complained  of,  the  state  of  the  bankrupt 
law  and  the  mode  of  its  administration,"  was  but  the  echo 
of  general  opinion.  The  adjudication,  with  which  the  per- 
formance opened,  deprived  the  debtor  (till  it  was  reversed) 
of  all  his  property,  left  him  absolutely  penniless,  and  pil- 
loried his  name  as  that  of  an  insolvent  in  the  Gazette.  Yet 
this  decree  was  granted  ex  parte  in  his  absence,  without  the 
knowledge  of  anybody  except  the  one  soi-disant  creditor 
who  had  chosen  to  put  the  law  in  motion.  All  that  was 
needed  was  an  affidavit  of  debt,  coupled  with  a  bond  which 
bound  the  deponent  to  substantiate  his  allegation.  Upon 
such  material,  a  fiat  issued  to  a  group  of  commissioners,  who 
assembled  from  their  houses  in  town  or  country,  as  the  case 
might  be,  met  in  private  at  a  coffee-house  or  inn,  and  after 
an  ex  parte  hearing  declared  the  supposed  debtor  bankrupt. 
A  warrant  was  thereupon  delivered  to  a  messenger,  directing 
him  to  enter  the  bankrupt's  house,  to  lay  hand  upon  his 
furniture,  ready  money,  property,  and  books  of  account, 
and  to  serve  him  with  a  summons  to  appear.  The  sight  of 
the  officer  armed  with  this  authority  was  the  first  notice  to 
the  trader  of  an  occurrence  which  put  at  issue  his  whole 
commercial  reputation.  Under  this  system  the  first  merchant 
in  London  or  in  Manchester  was  liable  to  suffer  unspeakable 
annoyance,  and  the  whole  Royal  Exchange,  as  it  was  sa;d, 
might  wake  up  one.  morning1  and  find  themselves  in  the 
Gazette. 

An  adjudication  so  obtained  necessarily  lacked  the  ele- 
ment of  finality.  It  could  be  impeached  by  the  bankrupt 
himself  as  well  as  by  others  before  any  other  civil  court,  even 
after  the  whole  estate  of  the  bankrupt  had  been  divided. 


16.     BOWEN:    THE    VICTORIAN    PERIOD       547 

Its  validity  might  be  challenged  in  an  action  of  trespass 
or  of  false  imprisonment  brought  against  the  commissioners 
of  bankruptcy,  or  against  their  messenger  who  had  done 
nothing  except  execute  his  warrant,  or  against  the  assignee 
who  had  innocently  dealt  with  the  estate.  The  mere  inti- 
mation on  the  part  of  the  bankrupt  that  he  disputed  the 
propriety  of  the  adjudication,  and  denied  the  alleged  act 
of  bankruptcy  on  which  it  was  founded,  was  enough  to 
paralyse  the  perplexed  assignee,  who  thenceforward,  if  he 
distributed  the  assets,  did  so  at  his  own  risk.  In  the  year 
1825  a  trader  of  the  name  of  Campbell  had  been  declared 
bankrupt  on  testimony  that  he  had  denied  himself  to  a 
creditor.  Campbell  disputed  the  adjudication  and  the  alle- 
gation upon  which  it  was  based.  Thirteen  years  afterwards, 
in  1838,  the  question  whether  he  had  really  (Jenied  himself 
to  the  creditor  who  called  on  him  was  still  in  controversy, 
and  remained  unsolved  even  after  Campbell's  imprisonment 
and  death.  During  the  interval  170,OOOZ.  of  his  property 
had  been  received  by  his  assignees,  but  not  one  farthing  of 
the  amount  in  1838  had  yet  reached  the  hands  of  his  general 
creditors,  while  50,OOOZ.  had  been  expended  in  costs. 

The  commissioners  under  whose  directions  an  adjudication 
took  effect  were  gentlemen  appointed  to  perform  this  func- 
tion, who  lived  at  a  distance  perhaps  from  one  another,  who 
had  to  be  convened  on  each  occasion  and  to  travel  (in  the 
days  of  the  infancy  of  railways)  perhaps  thirty  or  forty  miles 
to  attend  the  rendezvous.  Shortly  before  1837,  the  metropolis 
had  been  relieved  from  this  incubus,  and  the  seventy  commis- 
sioners of  London  replaced  by  a  London  Court  of  Bank- 
ruptcy, consisting  of  a  chief  judge  and  two  colleagues  (form- 
ing a  court  of  review)  and  six  commissioners.  But  the 
country  districts  still  groaned  under  a  judicial  army  of  700 
commissioners  divided  into  140  courts.  Each  tribunal,  as  a 
rule,  had  five  members  (generally  a  couple  of  local  barristers 
and  three  local  solicitors ) ,  who  taxed  among  other  things  the 
local  practitioners'  costs.  During  the  years  1837-39  the 
number  of  fiats  opened  before  the  700  country  commissioners 
was,  on  an  average,  780  per  annum  —  nearly  a  judge  to  every 
fiat  —  while  the  fees  paid  for  this  process,  and  wrung  out  of 


548        IV.     THE   NINETEENTH   CENTURY 

insolvent  estates,  amounted  to  between  34,0002.  and  35,OOOL 
But  the  paucity  of  provincial  fiats  was  no  indication  of  pro- 
vincial prosperity.  London  creditors  found  the  difficulty  of 
proceeding  against  debtors  in  the  country  nearly  insuperable, 
and  hesitated  to  throw  good  money  after  bad.  Finally,  the 
giving  or  withholding  of  the  bankrupt's  certificate  depended 
on  his  being  able  to  procure  the  necessary  number  of  creditors 
to  sign  his  certificate  of  discharge.  Secretion  of  traders' 
effects,  bribery  of  creditors,  manufacture  of  fictitious  claims, 
were  the  natural  consequence  of  such  a  system. 

Several  distinct  endeavours  have  been  made  by  Parlia- 
ment since  those  days  to  create  an  ideal  plan  for  the  adminis- 
tration of  bankruptcy  and  for  the  distribution  of  a  bankrupt's 
property.  The  legislative  pendulum  has  oscillated  from  one 
theory  to  another,  as  the  imperfections  of  each  were  experi- 
enced in  succession ;  and  the  pendulum  will  yet  go  on  swing- 
ing. But  the  whole  of  the  intolerable  abuses  above  set  forth 
have  been  swept  away.  Imprisonment  for  debt  is  gone,  except 
in  particular  cases,  where  the  non-payment  of  money  is  accom- 
panied with  fraud,  misconduct,  breach  of  trust  or  of  duty,  or 
disobedience  to  the  order  of  a  court,  or  where  it  is  shown  that 
the  debtor  can  but  will  not  pay.  Courts  of  bankruptcy  have 
been  created,  with  a  machinery  the  details  of  which  require  still 
to  be  watched  with  care,  as  they  still  belong  to  the  category 
of  legislative  experiment ;  but  traders  and  non-traders  alike 
have  been  brought  under  a  system  which  is  as  complete  as  the 
ingenuity  of  Parliament  has  hitherto  been  able  to  render  it. 

Meanwhile,  the  country  had  not  stood  idle  in  reference 
to  the  administration  of  the  law  for  the  repression  of  crime. 
As  early  as  1826,  the  late  Sir  Robert  Peel  initiated  a  course 
of  legislation  intended  to  consolidate  and  amend  the  criminal 
law,  which  till  then  had  been  scattered  in  fragments  over  the 
statute  book,  uncollected  and  unarranged.  A  commission  had 
issued  shortly  before  1837  with  the  view  of  digesting  the 
written  and  unwritten  law  into  two  monster  Acts  of  Parlia- 
ment, and  the  earlier  portion  of  the  reign  produced  a  series  of 
valuable  reports  of  successive  commissions  upon  the  subject. 
But  although  a  digest  was  prepared  in  1848,  it  never  became 
law.  In  1852,  Lord  St.  Leonards  determined  to  attempt  codi- 


16.     BOWEN:    THE    VICTORIAN    PERIOD        549 

fication  as  an  alternative  expedient,  but  after  two  years  of 
labour  this  project  was  also  laid  aside.  Both  digest  and  code 
appearing  to  be  beyond  the  range  of  practical  politics,  the 
idea  of  consolidating  and  amending  the  existing  law  was  re- 
vived again,  and  six  Criminal  Law  Consolidation  and  Amend- 
ment Acts  of  much  importance  were  passed  in  1861,  which  now 
constitute  the  nucleus  of  our  written  criminal  law.  This  is 
the  greatest  achievement  of  the  reign  in  the  branch  of  the  law 
now  under  consideration.  Mr.  Justice  Stephen  has  produced 
of  late  years  a  draft  code  that  has  not  yet  received  the  sanc- 
tion of  Parliament,  but  which  in  itself  is  an  effort  worthy  to 
be  remembered  as  one  of  the  valuable  pieces  of  industry  of  the 
last  fifty  years.  Among  the  names  that  deserve  to  be  recol- 
lected in  connection  with  the  amendment  of  the  statute  book 
stand  pre-eminent  those  of  Lord  Campbell  and  Lord  Cran- 
worth,  of  Sir  J.  Jervis  (the  Chief  Justice  of  the  Common 
Pleas),  and  of  the  late  Mr.  Greaves.  The  law  of  libel  has 
been  corrected  by  enabling  a  plea  of  justification  to  be 
pleaded  in  matters  where  publication  of  the  truth  is  for  the 
public  interest.  In  1851  invaluable,  though  not  unlimited, 
powers  of  amendment  were  conferred  on  criminal  courts,  and 
other  practical  changes  in  procedure  enacted  to  prevent  slips 
and  miscarriages  of  justice.  In  1865,  the  present  Mr.  Justice 
Denman  introduced  into  Parliament  an  Act  to  rectify  certain 
anomalies,  chiefly  in  the  law  of  evidence,  and  an  Act  due  to 
the  initiation  of  the  late  Mr.  Russell  Gurney  contributed, 
two  years  afterwards,  greater  improvements  to  the  procedure. 
The  present  Court  of  Crown  Cases  Reserved  was  created  in 
1848:  a  tribunal  for  which  doubtful  points  of  law  may  be 
reserved  at  the  trial  —  reservations  previously  dealt  with  by 
the  judges  in  a  less  public  and  general,  and  therefore  a  less 
satisfactory  way.  But  the  criminal  procedure  and  practice 
has  undergone  less  alteration  than  the  civil,  probably  because 
ample  protection  for  the  prisoner  was  afforded  even  by  the 
older  law.  Although  miscarriages  are  but  rare,  the  system 
of  criminal  pleading  is  still  extraordinarily  cumbrous  and 
involved.  Ten  years  ago,  an  indictment  drawn  by  the  present 
writer  in  an  important  Government  prosecution,  and  settled 
in  consultation  with  the  present  Lord  Chancellor  and  the  late 


550        IV.     THE    NINETEENTH    CENTURY 

Lord  Justice  Holker,  reached,  when  engrossed  on  parchment 
and  presented  at  the  Old  Bailey,  ninety  yards  in  length. 
Nevertheless  there  is  no  place  in  the  world  where  justice  is 
more  admirably  done  than  in  our  great  courts  of  criminal  law. 
Many  difficulties  yet  remain  to  be  overcome  in  devising,  if 
possible,  some  adequate  system  for  the  interrogation  and 
examination  of  the  accused,  in  equalising  sentences  through- 
out the  kingdom,  in  bringing  those  passed  at  quarter  sessions 
into  more  complete  harmony  with  those  inflicted  by  the  judge 
at  the  assizes,  and  in  graduating  and  adjusting  with  greater 
nicety  as  well  as  in  lessening  the  severity  of  the  longer  sen- 
tences of  penal  servitude.  As  regards  the  procedure  before 
justices,  and  all  matters  that  relate  to  their  jurisdiction,  the 
reign  has  been  fruitful  of  the  best  and  most  careful  legisla- 
tion. Jervis's  Acts  (drawn  by  Mr.  Archbold  and  introduced 
by  Sir  T.  Jervis  when  Attorney-General),  the  new  Summary 
Jurisdiction  Act  of  1879,  and  a  group  of  statutes  that  extend 
and  regulate  the  summary  powers  of  magistrates,  have  been  of 
considerable  benefit  to  society.  At  the  beginning  of  the  reign 
there  were  outside  the  metropolis  but  two  or  three  stipendiary 
magistrates.  The  extension  of  their  number  has  been  a 
measure  of  unqualified  good.  Extradition  statutes  have  been 
passed,  which,  together  with  a  series  of  treaties,  now  enable 
justice  to  follow  many  English  criminals  beyond  the  seas,  and 
to  remit  for  trial  to  their  own  country  many  foreign  culprits 
who  have  fled  to  seek  an  asylum  here. 

For  some  few  years  before  1837,  the  punishment  of 
death  had  ceased  to  be  inflicted  except  for  the  crime  of 
murder.  But  the  condition  of  the  Statute-book  in  this  respect 
had  not  kept  pace  with  the  humane  practice  of  the  Executive. 
Death  was  still  the  sentence  for  some  lesser  offences,  though  it 
was,  as  a  rule,  commuted.  So  lately  as  1833,  a  poor  little  boy 
of  nine  pushed  a  stick  through  a  broken  window,  and  pulled 
out  some  painters'  colours  worth  twopence.  He  was  sentenced 
to  death  for  burglary.  The  result  of  this  condition  of  the 
law  was  twofold.  In  the  first  place,  it  led  prosecutors  and 
witnesses  to  abstain  from  pressing  home  the  evidence  of  a 
prisoner's  guilt,  and  to  connive  anxiously  at  his  escape.  In 
the  second  place,  the  deterring  influence  of  the  sentence  was 


16.     BOWEN:    THE    VICTORIAN    PERIOD        551 

destroyed,  since  it  was  not  likely  that  it  ever  would '  be 
enforced.  In. the  year  1836,  the  number  so  condemned  to 
death  was  four  hundred  and  ninety-four,  only  thirty-four  of 
whom  were  hanged.  The  first  year  of  her  Majesty  saw  a 
series  of  Acts  of  Parliament  limiting  the  number  of  capital 
sentences  and  graduating  the  secondary  punishments.  In 
1861,  a  still  further  amelioration  of  the  law  took  place,  and 
now  murder  and  treason,  piracy  with  violence,  and  setting  fire 
to  her  Majesty's  dockyards,  arsenals,  ships,  and  naval  stores 
are  the  only  capital  crimes.  While  the  population  of  England 
and  Wales  has  nearly  doubled,  the  average  number  of  execu- 
tions, according  to  Sir  Edmund  Du  Cane,  has  not  increased  at 
all,  and  the  capital  sentences  have  enormously  decreased.  The 
present  reign,  moreover,  has  seen  the  extinction  of  the  savage 
custom  of  converting  into  a  public  spectacle  the  execution  of 
the  final  sentence  of  the  law.  Down  to  1837,  the  pillory  was 
still  a  punishment  for  perjury  and  subornation  of  perjury. 
It  ceased  in  that  year ;  but  public  executions  remained  in 
fashion  for  thirty  years  longer.  The  scenes  of  licence  and 
disorder  which  on  such  occasions  might  be  witnessed  outside 
the  prison  walls  have  been  portrayed  by  the  graphic  pen  of 
more  than  one  great  author  of  the  age.  Each  unhappy 
criminal,  as  the  fatal  day  drew  near,  became  the  object  of 
sensational  curiosity.  In  1840,  the  Lady  .Mayoress  of  the 
day  attended  the  funeral  sermon  preached  in  Courvoisier's 
presence  on  the  last  Sunday  before  his  death.  On  the 
night  preceding  an  execution,  brutal  crowds  took  up  their 
station  in  the  vicinity  of  the  gaol,  and  parties  of  pleasure 
were  organised  to  witness  the  scene  of  death  —  parties  not 
composed  only  of  the  uneducated.  Even  down  to  1.868  English 
gentlemen  might  be  seen  occasionally  at  the  adjacent  windows 
which  commanded  a  commodious  view  of  the  gallows  and  the 
drop.  The  barbarous  ceremony  which  served  to  familiarise 
thousands  with  the  agonies  of  a  death  struggle  is  now  a  thing 
of  the  past,  and  since  1868  the  law  inflicts  its  most  terrible 
punishment  in  private. 

Prevention  and  detection  of  crime  are  subjects  which,  like 
the  subject  of  the  execution  of  the  law's  judgments,  may 
fairly  rank  under  the  head  of  its  administration.  Not  the 


552        IV.     THE   NINETEENTH   CENTURY 

least  valuable  of  the  reforms  of  the  reign  has  been  the  per- 
fecting throughout  the  country  of  a  proper  system  of  police 
organisation.  The  metropolitan  police,  to  which  not  merely 
London  but  all  England  owes  so  much,  are  a  still  earlier 
institution ;  and,  before  the  year  1836,  legislation  had  pro- 
vided a  constabulary  for  the  boroughs.  A  police  force  for  the 
rural  parts  of  the  county  palatine  of  Chester  was  also  in 
existence,  and  many  country  districts  had  themselves  raised 
voluntary  associations  to  maintain  officers  of  their  own  —  a 
task  in  which  they  received  valuable  aid  from  the  police  of  the 
metropolis.  But,  with  these  exceptions,  the  lesser  towns  and 
the  rural  districts  were  guarded,  in  1837,  from  the  depreda- 
tions of  the  criminal  by  the  effete  institution  of  the  parish  con- 
stable and  the  watchman.  It  requires. an  effort  of  the  imag- 
ination to  realise  the  extent  to  which  lawlessness  then  reigned 
in  the  suburbs  of  our  large  towns  and  in  our  country  places. 
In  the  smaller  towns  and  villages  the  constable  was  chosen 
from  the  humblest  order  of  tradesmen,  farmers,  or  even 
day-labourers.  He  was  frequently  the  master  of  the  ale 
house  or  the  village  shop,  who  for  a  trifling  remuneration  had 
accepted  the  office,  or  had  it  forced  upon  him  in  rotation ;  and 
.the  guardians  of  the  public  peace  could  not  always  read  or 
write.  The  last  thing  such  officials  wished  was  to  incur  the 
trouble,  the  danger,  or  the  odium  of  pursuing  or  arresting  a 
culprit.  Over  a  considerable  portion  of  England,  property 
was  less  secure  than  in  any  great  European  country,  except- 
ing only  Italy  and  Spain.  Commercial  travellers  were  loth  to 
travel  after  dark.  One  of  them,  who  for  twenty  years  had 
made  the  round  of  the  south-eastern  counties  from  Norfolk 
to  Devonshire,  states  in  the  year  1838  that,  although  perfect 
security  prevailed  within  five  or  six  miles  of  the  metropolis,  it 
would  be  imprudent  beyond  that  distance  to  venture  out  after 
nightfall;  and  that  if  he  could  travel  where  there  were  no 
police  with  the  same  freedom  as  he  could  within  the  police 
district,  he  should  be  able  on  his  rounds  to  save  perhaps  five 
days  in  forty.  Property  was  safe  neither  on  the  river,  nor  on 
the  canal,  nor  upon  the  turnpike  road.  Commercial  houses 
came  forward  in  numbers  to  complain  that  whole  lines  of  canal 
were  absolutely  unprotected,  that  bales  were  opened,  and  their 


16.     BO  WEN:    THE    VICTORIAN    PERIOD      553 

boxes  and  cases  broken  or  abstracted.  Along  different  lines 
of  canal  receivers  of  stolen  goods  set  up  regular  establish- 
ments, and  entire  families  in  the  neighbourhood  lived  on  the 
receipt  of  the  plunder.  Silk,  wine,  spirits,  flour,  malt,  gro- 
ceries of  every  description  disappeared  wholesale.  In  the 
Enfield  district,  upwards  of  thirty  gentlemen  in  the  year 
1838,  during  a  period  of  twelve  months,  had  their  stables 
opened  and  large  quantities  of  property  carried  away.  Foot- 
pads lurked  in  the  vicinity  of  the  great  manufacturing  centres 
of  the  north ;  robbery  with  violence,  murder  itself,  went  often 
unpunished.  Gangs  from  towns  drifted  into  the  country  for 
the  purposes  of  crime ;  the  towns,  in  their  turn,  suffered  from 
the  bad  characters  who  took  up  their  residence  in  the  country, 
with  no  apparent  anxiety  to  avoid  the  presence  of  the  parish 
constable.  Vagrants  perambulated  the  kingdom,  living  on 
their  wits,  and  even  the  cottagers'  dwellings  were  rifled  while 
the  inmates  were  working  in  the  fields.  The  farmer  who  kept 
no  private  watchman,  or  who  did  not  live  within  the  radius  of 
an  association,  was  liable  to  lose  great  quantities  of  agricul- 
tural produce.  If  he  lived  near  a  town  like  Leeds,  he  hesitated 
before  returning  home  after  dark  from  the  market  or  the  fair, 
unless  he  was  in  the  company  of  friends.  The  local  constable 
was  sometimes  too  stupid,  sometimes  too  busy,  often  too  timid, 
to  attend  to  information  given  him.  It  was  due  to  the  same 
cause  that  wreckers  at  this  date  haunted  the  dangerous  and 
desolate  places  on  the  coast.  Rural  crime,  in  fact,  went 
unprevented,  undetected,  unprosecuted.  The  returns  of  pros- 
ecutions and  convictions,  to  which  the  statesman  and  the 
philanthropist  in  our  time  have  recourse  as  affording  some 
clue  to  the  prevalence  or  absence  of  crime,  told  absolutely 
nothing,  for  they  bore  no  relation  at  all  to  the  good  conduct 
of  the  locality.  Men  abstained  from  prosecuting  when  there 
was  no  certainty  of  redress,  and  the  absence  of  criminal  sta- 
tistics resulted  frequently  from  the  undisturbed  immunity  of 
the  offenders.  In  two  instances  towards  the  beginning  of  the 
reign,  in  neighbourhoods  where  crime  was  remarkably  preva- 
lent, her  Majesty's  judges  were  presented  with  white  kid 
gloves  at  the  assizes,  as  emblematic  of  the  purity  of  the 
district. 


554        IV.     THE   NINETEENTH   CENTURY 

Even  in  country  towns  and  places  where  a  constabulary 
force  was  raised  and  paid  by  voluntary  effort,  the  justice 
administered  by  it  was  rude.  In  one  district,  in  1838,  the 
parish  constables  were  under  standing  orders  from  the  magis- 
trates to  tap  with  their  staves  the  pockets  of  all  labourers  or 
other  persons  found  abroad  after  nightfall,  in  order  that  the 
pheasants'  or  partridges'  eggs  therein,  if  any,  might  be 
broken!  In  conformity  with  the  behest  of  the  chief  magis- 
trate of  one  considerable  town,  the  constables  seized  all 
vagrants  found  within  their  jurisdiction  and  took  them  to 
prison  to  have  their  heads  shaved,  after  which  operation  they 
were  set  at  liberty  and  went  their  ways.  The  superintendent 
of  police  was  asked  by  what  right  he  apprehended  them  and 
cut  their  hair.  "  The  mayor,"  he  replied,  "  who  is  a  man  of 
few  words,  says  he  crops  them  for  cleanliness."  In  some  rural 
districts  the  paid  police  were  in  the  habit  of  dispensing  alto- 
gether with  the  constitutional  formality  of  a  warrant.  An 
officer  interrogated  on  the  subject  frankly  confessed  the 
irregularity,  but  added,  that  "  he  chanced  it."  In  another 
new  borough  the  superintendent  of  police  prided  himself  "  on 
never  waiting  for  a  warrant.  It  was  not  his  plan.  It  was  a 
waste  of  time."  "  I  am,"  he  added,  "  for  being  prompt  in 
everything.  I  say,  '  If  I  can  take  him  up  with  a  warrant  I 
can  take  him  up  without  a  warrant.' '  In  the  year  1839, 
there  were  upwards  of  five  hundred  voluntary  associations  for 
promoting  the  apprehension  and  prosecution  of  felons  —  for 
performing,  in  fact,  by  individuals  the  first  duty  of  a  civilised 
government.  Among  the  rules  of  some  of  them  were  rules  for 
mutual  insurance  by  payment  of  part  of  the  loss  caused  by 
depredations.  In  some  of  the  farmers'  associations  members 
were  bound  by  their  code,  in  case  of  horse-stealing,  to  mount 
and  join  themselves  in  pursuit  of  the  thief  upon  an  alarm 
given. 

By  Acts  of  1839  and  1840  Parliament  enabled  bodies  of 
police  to  be  established  for  a  county.  But  the  English  farmer 
and  the  English  ratepayer  hesitated,  from  fear  of  loading 
the  rates,  to  put  in  force  the  permission  which  the  Legislature 
had  given.  It  was  not  till  seventeen  years  afterwards  that  the 
establishment  of  county  police  was  made  compulsory  in  all 


16.     BO  WEN:    THE    VICTORIAN   PERIOD     555 

places  where  it  had  not  been  introduced,  and  that  the  organi- 
sation of  what  has  been  called  our  standing  army  against 
crime  was  placed  upon  its  present  footing.  What  requires  to 
be  done  to  perfect  still  further  its  efficiency,  it  would  be  be- 
yond the  limits  of  this  paper  to  discuss.  To  what  has  already 
been  accomplished  is  due  the  disappearance  in  the  course  of 
the  present  reign  of  a  lawlessness  and  insecurity  in  our  coun- 
try districts  which  had  become  a  disgrace  to  England. 

The  treatment  of  our  criminal  classes  while  undergoing 
sentence  of  imprisonment  or  penal  servitude  constitutes  the 
last  head  of  the  present  subject;  and  limits  of  space  require 
that  the  notice  of  it  should  be  brief.  The  darkest  ages  of 
English  prisons  had  closed  before  1837,  but  a  prison  system 
was  as  yet  unorganised.  Throughout  our  local  gaols  there 
was  no  uniformity  of  management  —  the  hours  of  labour,  the 
discipline,  the  diet  varied  in  each ;  a  separate  system  of  con- 
finement, a  careful  graduation  of  punishments,  the  classifica- 
tion of  offenders,  the  construction  and  sanitation  of  the 
prison,  all  remained  to  be  dealt  with  upon  a  natural  and  com- 
plete basis.  The  years  1840-43  began  an  epoch  of  improve- 
ment with  the  opening  of  Pentonville  — a  model  establishment, 
with  airy  single  cells  and  sanitary  arrangements  of  the  best 
kind,  which  has  been  the  means  of  developing  and  perfecting 
in  England  the  separate  system,  and  been  largely  imitated 
abroad.  Fifty-four  new  prisons  were  constructed  on  a  similar 
method  during  the  next  six  years.  But  prison  reform  still 
moved  slowly,  owing  to  the  number  of  local  gaols,  each  under 
a  management  of  its  own.  Even  in  the  year  1863,  the  food  at 
one  gaol  was  furnished  from  a  neighbouring  inn,  while  at 
another  the  inmates  passed  fifteen  hours  out  of  the  twenty- 
four  in  bed.  In  some  smaller  prisons  the  prisoners  slept  two 
in  a  bed,  in  compartments  which  the  warders  were  afraid  to 
enter  in  the  dark.  Parliament  in  1865  introduced  the  separate 
cell  system,  with  rules  for  the  discipline,  health,  diet,  labour, 
and  classification  of  the  inmates ;  but  the  essential  step 
towards  complete  uniformity  was  not  adopted  till  1877,  when 
Government  took  over  the  local  prisons  of  the  country,  and 
the  Secretary  of  State  and  the  Commissioners  of  Prisons 
became  responsible  for  their  management.  A  uniform  code 


556        IV.     THE   NINETEENTH   CENTURY 

now  regulates  them  all,  and  prisoners  awaiting  trial  are  sep- 
arated from  those  who  have  been  found  guilty.  The  Govern- 
ment convict  prisons,  where  sentences  of  penal  servitude  are 
carried  out,  belong  to  a  different  category,  and  are  under  a 
different  direction  and  distinct  rules.  The  "  hulks  "  have  been 
abandoned  as  a  receptacle  for  convicts,  and  transportation  to 
the  Australian  colonies  has  ceased  since  1867.  Its  evils  had 
long  been  intolerable  to  our  colonists.  The  four  or  five  thou- 
sand persons  who  were  sent  out  on  an  average,  at  the  begin- 
ning of  the  reign,  as  convicts  to  New  South  Wales  alone,  were 
not  absorbed  in  the  population,  but,  to  borrow  the  language 
of  Lord  John  Russell,  "  formed  a  large  and  vicious  separate 
class."  The  future  of  the  convict  depended  on  the  character 
for  humanity  of  the  master  to  whom  he  was  assigned,  and 
flogging  by  colonial  magistrates  was  a  common  and  recog- 
nised punishment.  Modifications  of  the  system  were  tried 
between  1840  and  1850,  but  failed.  At  last,  in  1853,  penal 
servitude  in  England  was  substituted  in  the  case  of  all  crimes 
for  which  fourteen  years'  transportation  had  been  previously 
a  possible  sentence,  and  in  1857  was  legalised  in  every  case. 
Since  the  year  1867  no  convict  has  been  sent  to  Australia. 
Reformatories  and  industrial  schools  are  institutions  that 
belong  wholly  to  the  present  reign,  and  will  hereafter  be 
reckoned  among  not  the  least  of  its  humane  inventions. 

A  lawyer  may  perhaps  be  excused  for  mingling  with  his 
retrospect  of  a  period  some  names  that  appear  bound  up  with 
the  honour  of  his  profession.  The  public  service  is  greater 
than  the  men  who  serve  it,  and  no  judge,  fortunately,  is  indis- 
pensable to  the  law,  any  more  than  a  single  wave  is  indispen- 
sable to  the  sea.  Of  the  living,  this  is  not  the  time  nor  place  to 
speak.  But  as  regards  the  dead,  no  generation  can  complain 
of  judicial  mediocrity  that  has  seen  upon  the  woolsack,  Cot- 
tenham,  Lyndhurst,  St.  Leonards,  Cranworth,  Chelmsford, 
Westbury,  Cairns;  at  tfoe  Rolls,  Langdale,  Romilly,  and 
Jessel;  among  its  Lords  Justices,-  Knight  Bruce,  Turner, 
Mellish,  James,  Giff ard,  Thesiger ;  in  its  Court  of  Chancery, 
Wigram,  Kindersley,  Stuart,  Hatherley,  Wickens;  in  its 
Queen's  Bench,  Denman,  Campbell,  Cockburn,  Williams, 
Wightman,  Coleridge,  Patteson,  Crompton,  Lush;  at  the 


16.     BOWEN:   THE    VICTORIAN   PERIOD     557 

Common  Pleas,  Jervis,  Erie,  Maule,  Willes ;  at  the  Exchequer, 
Abinger,  Pollock,  Kelly,  Parke,  Alderson ;  at  the  Privy 
Council,  Kingsdown ;  Cresswell  in  the  Probate  and  Divorce 
Court,  Lushington  at  the  Admiralty.  Transplanted  to  the 
House  of  Lords,  or  raised  to  the  Privy  Council,  Lords  Pen- 
zance,  Blackburn,  Bramwell,  Sir  John  Mellor,  Sir  Henry 
Keating,  Sir  Montague  Smith,  and  Sir  James  Bacon  remain 
to  remind  us  of  the  glories  of  courts  now  extinct.  Apart  from 
the  luminaries  of  the  Bench,  the  Bar  of  England  looks  back 
with  pride  on  the  memory  of  Follett,  Karslake,  Benjamin. 
The  roll  of  the  legal  heroes  of  the  past  is  always  healthily 
inspiriting.  It  nerves  those  who  come  after — in  the  language 
of  the  Poet  Laureate  —  to 

Push  off  and,  sitting  well  in  order,  smite 
The  sounding  furrows. 

For  much  always  is  left  to  be  accomplished.  There  is  and  can 
be  no  such  thing  as  finality  about  the  administration  of  the 
law.  It  changes,  it  must  change,  it  ought  to  change,  with  the 
broadening  wants  and  requirements  of  a  growing  country, 
and  with  the  gradual  illumination  of  the  public  conscience. 


17.     THE    DEVELOPMENT    OF    JURISPRUDENCE 
DURING   THE    NINETEENTH   CENTURY1 

BY  JOSEPH  HENRY  BEALE,  Jn.2 

THE  term  "  jurisprudence  "  has  been  used  with  so  many 
meanings,  and  each  meaning  is  so  vague,  that  it  is  neces- 
sary at  the  outset  of  any  discussion  of  it  to  limit  in  some  way 
the  meaning  intended  to  be  put  upon  it.  By  jurisprudence, 
as  used  in  the  programme  of  this  Congress,  I  understand  to 
be  meant  the  whole  body  of  law  of  the  European  and  Ameri- 
can nations,  regarded  as  a  philosophical  system  or  systems ; 
in  short,  the  science  of  justice,  as  practised  in  civilized  na- 
tions. My  own  topic,  therefore,  is  to  describe  the  changes 
in  the  law  or  in  the  understanding  of  the  law  in  the  civilized 
world  during  the  past  century. 

So  broad  a  subject  cannot,  of  course,  be  treated  exhaust- 
ively, nor  can  any  part  of  it  be  examined  in  detail.  My  effort 
will  be  merely  to  suggest,  in  case  of  a  few  branches  of  law 
where  the  changes  seem  to  be  typical,  the  course  and  reason  of 
those  changes. 

If  we  compare  the  condition  of  the  law  at  the  beginning  of 

1  This  essay  was  originally  delivered  as  one  of  the  principal  addresses 
at  the  World's  Congress  of     Arts  and  Science  held  in  St.  Louis  at  the 
Louisiana  Purchase  Exposition  in  1904,  and  was  published  in  the  Pro- 
ceedings  of   the   Congress,   volume    VII,   pp.   470-481    (Department   of 
Jurisprudence),  and  also  in  the  Harvard  Law   Review,  1904-5,  volume 
XVIII,  pp.  271-283. 

2  Bussey  Professor  of  Law  in  Harvard  University.     A.  B.  Harvard 
University,  1882;    A.M.,  LL.  B.,  1887;    LL.  D.  Wisconsin  and  Chicago 
Universities;    assistant  professor  of  law  in   Harvard   University,  1892, 
professor   of  law   since   1897;    professor  of  law  and  dean  of  the  law 
school  in  Chicago  University,  1902-1904. 

Other  Publications:  Cases  on  Criminal  Law,  1894;  Cases  on  Dam- 
ages, 1895;  Cases  on  Carriers,  1898;  Criminal  Pleadings  and  Practice, 
1899;  Cases  on  the  Conflict  of  Laws,  1902;  Cases  on  Public  Service 
Corporations, ,  1902 ;  Foreign  Corporations,  1904;  Innkeepers,  1906; 
Regulation  of  Railroad  Rates,  1906. 

658 


17.     BE  ALE:   JURISPRUDENCE  559 

the  century  with  its  present  condition,  we  shall  gain  some  idea 
of  the  amount  of  change  in  the  law  itself  and  its  administra- 
tion. In  England  conservatism  and  privilege  and  the  dread 
inspired  in  the  heart  of  the  people  by  the  excesses  of  the 
French  revolution  conspired  to  retain  in  the  law  the  medieval 
subtleties  and  crudities,  though  the  reason  of  them  had  been 
forgotten  and  the  true  application  of  them  often  mistaken. 
The  criminal  law  was  administered  with  ferocity  tempered 
by  ignorance ;  all  the  anomalies  and  mistakes  which  have  dis- 
figured its  logical  perfection  are  traceable  to  the  period  just 
before  the  beginning  of  the  last  century.  Criminal  pro- 
cedure was  still  crude  and  cruel.  The  accused  could  neither 
testify  nor  be  assisted  by  counsel ;  legally,  death,  actually,  a 
small  fine  or  at  most  transportation,  was  the  punishment  for 
most  serious  offenses.  The  amount  of  crime  in  proportion  to 
the  population  was  enormously  greater  than  now ;  there  were 
no  preventive  measures,  no  police,  not  even  street  lights.  The 
law  of  torts  occupied  almost  as  small  a  place  as  it  did  in  the 
proposed  codes ;  the  law  of  contracts  was  so  unformed  that  it 
was  not  certain  whether  Lord  Mansfield's  doctrine  that  a  writ- 
ten commercial  agreement  needed  no  consideration,  would 
prevail  or  not.  Business  corporations  were  hardly  known; 
almost  the  whole  field  of  equity  was  hidden  by  a  portentous 
cloud.  Lord  Eldon  had  just  become  chancellor.  What  the 
law  of  England  was,  such  with  little  difference  was  the  law 
of  our  own  country.  Its  application  to  the  complex  life  of 
•  the  present  was  not  dreamed  of ;  and  it  had  to  be  greatly 
changed  before  it  could  be  adapted  to  the  needs  of  to-day. 
Yet  to  say,  as  did  Bentham,  that  it  was  rotten  to  the  core 
and  incapable  of  amendment  was  grotesquely  incorrect; 
to  say,  as  one  of  his  latest  disciples  did,  that  it  was  the 
laughing-stock  of  the  Continental  nations  is  strangely  to 
misread  history.  In  1803,  with  all  its  imperfections  and 
crudities,  it  was  probably  the  most  just  and  humane  system 
of  law  under  which  human  beings  were  then  living. 

On  the  Continent,  feudal  rights  characterized  civil  law; 
torture  was  the  basis  of  the  administration  of  criminal 
law.  And  in  no  country  of  any  size  had  the  people  yet 
obtained  what  had  been  given  to  Englishmen  by  their  great- 


560        IV.     THE   NINETEENTH   CENTURY 

est  king  more  than  six  hundred  years  before,  —  a  common 
law.  Each  province  throughout  southern  and  western  Eu- 
rope had  its  custom,  each  land-owner  his  own  jurisdiction. 
The  rigor  of  the  criminal  law  had  been  somewhat  modified 
in  France  by  the  legislation  of  the  revolution,  and  just  at 
the  beginning  of  our  century  the  Civil  Code,  first  of  the 
French  Codes,  was  adopted.  These  codes,  temporarily  or 
permanently  impressed  on  a  large  part  of  Europe  outside 
of  France,  constituted  the  beginning  of  modern  legislative 
reform. 

The  spirit  of  the  time  molds  and  shapes  its  law,  as  it 
molds  and  shapes  its  manner  of  thought  and  the  whole 
current  of  its  life.  For  law  is  the  effort  of  a  people  to 
express  its  idea  of  right;  and  while  right  itself  cannot 
change,  man's  conception  of  right  changes  from  age  to  age, 
as  his  knowledge  grows.  The  spirit  of  the  age,  therefore, 
affecting  as  it  must  man's  conception  of  right,  affects  the 
growth  both  of  the  common  and  of  the  statute  law.  But 
the  progress  toward  ideal  right  is  not  along  a  straight 
line.  The  storms  of  ignorance  and  passion  blow  strong,  and 
the  ship  of  progress  must  beat  against  the  wind.  Each 
successive  tack  brings  us  nearer  the  ideal,  yet  each  seems 
a  more  or  less  abrupt  departure  from  the  preceding  course. 
The  radicals  of  one  period  become  the  conservatives  of  the 
next,  and  are  sure  that  the  change  is  a  retrogression ;  but 
the  experience  of  the  past  assures  us  that  it  is  progress. 

Two  such  changes  have  come  in  the  last  century.  The  ' 
eighteenth  had  been,  on  the  whole,  a  self-sufficient  century; 
the  leaders  of  thought  were  usually  content  with  the  world 
as  it  was,  and  their  ideal  was  a  classical  one.  The  prophets 
of  individuality  were  few  and  little  heeded.  But  at  the  end 
of  the  century,  following  the  American  and  French  revolu- 
tions, an  abrupt  change  came  over  the  prevailing  current 
of  thought  throughout  the  civilized  world ;  and,  at  the  begin- 
ning of  the  period  under  discussion,  the  rights  of  man  and 
of  nations  become  subjects  not  merely  of  theoretical  discus- 
sion but  of  political  action.  The  age  became  one  of  daring 
speculation.  Precedent  received  scant  consideration.  The 
American  revolution  had  established  the  right  of  the  common 


17.     BE  ALE:   JURISPRUDENCE  561 

people  to  a  voice  in  the  government.  The  French  revolu- 
tion had  swept  feudal  rights  from  the  civilized  world.  Al- 
though the  French  Republic  was  just  passing  into  the  French 
Empire,  it  was  an  empire  which  belonged  to  the  people,  and 
one  of  which  they  were  proud.  The  Emperor  was  the  rep- 
resentative and  the  idol,  not  of  an  aristocracy,  but  of  his 
peasants  and  his  common  soldiers.  The  dreams  of  Napo- 
leon himself,  to  be  sure,  were  not  of  an  individualistic  para- 
dise, where  each  man's  personality  should  have  free  play 
and  restraint  on  his  inclinations  be  reduced  to  the  minimum ; 
but  so  far  as  he  was  able  to  put  his  centralizing  ideals  into 
execution  he  raised  but  a  temporary  dam,  which  first  spread 
the  flood  of  liberty  over  all  Europe  and  was  finally  swept 
away  by  the  force  of  the  current. 

Starting  from  this  point,  the  spirit  of  the  time  for  more 
than  a  generation  was  humanitarian  and  individualistic.  In 
political  affairs  independence  was  attempted  by  almost  every 
subordinate  people  in  the  civilized  world,  and  was  attained 
by  the  South  American  colonies,  by  Greece,  and  by  Belgium. 
In  religion  freethinking  prevailed,  and  every  creed  was  on 
the  defensive.  In  society  women  and  children  were  emanci- 
pated. Slavery  was  abolished,  and  the  prisons  were  re- 
formed. It  was  a  destructive  rather  than  a  constructive 
age,  and  its  thinkers  were  iconoclasts. 

But  a  change,  beginning  with  the  second  third  of  the  cen- 
tury, was  gradually  accomplished.  The  application  of  the 
forces  of  steam  and  electricity  to  manufacture  and  trans- 
portation has  had  a  greater  effect  on  human  life  and  thought 
than  any  other  event  of  modern  times.  The  enormous  power 
exerted  by  these  forces  required  great  collections  of  labor 
and  capital  to  make  them  effective.  Association  became  the 
rule  in  business  affairs,  and  as  it  proved  effectual  -there,  the 
principle  of  association  became  more  and  more  readily  ac- 
cepted in  social  and  political  affairs,  until  it  has  finally  be- 
come the  dominating  idea  of  the  time.  The  balance  has 
swung ;  the  men  of  our  time  are  more  interested  in  the  rights 
of  men  than  in  the  rights  of  man;  the  whole  has  come  to 
be  regarded  as  of  more  value  than  the  separate  parts.  Be- 
ginning with  the  construction  of  railroads,  the  idea  attained 


562        IV.     THE   NINETEENTH   CENTURY 

a  firm  standing  in  politics  in  the  sixties.  Whereas  before 
that  time  the  movement  had  been  toward  separation,  now  it 
was  toward  consolidation.  People  felt  the  tie  of  nationality 
stronger  than  the  aspiration  for  individual  development. 
The  unification  of  Italy  and  of  Germany,  the  federation  of 
Canada,  the  prevalence  of  corporate  feeling  in  America 
which,  first  passionately  expressed  by  Webster,  prevailed  in 
'65,  mark  the  principle  of  association  in  political  affairs. 
In  business  the  great  combinations  of  capital  have  been  the 
salient  features  of  the  change. 

Professor  Dicey,  in  a  most  suggestive  series  of  lectures 
a  few  years  ago,  pointed  out  many  ways  in  which  the  English 
law  had  been  affected  by  this  progress  of  thought  during 
the  nineteenth  century.  Since  the  thought  of  the  whole 
world  has  been  similarly  affected  we  should  expect  to  find, 
and  we  do  find,  that  not  merely  English  law  but  universal 
jurisprudence -has  developed  in  the  direction  of  the  progress 
of  thought,  —  during  the  first  period  in  the  direction  of 
strengthening  and  preserving  individual  rights,  both  of 
small  states  and  of  individuals,  during  the  second  period 
in  the  direction  of  creating,  recognizing,  and  regulating 
great  combinations,  whether  of  states  or  of  individuals.  Let 
us  develop  this  line  of  thought  by  examining  the  progress  of 
law  in  a  few  striking  particulars." 

The  most  striking  development  of  the  law  of  nations  dur- 
ing the  last  century  has  been  in  the  direction  of  international 
constitutional  law,  if  I  may  so  call  it,  rather  than  of  the 
substantive  private  law  of  nations.  At  the  beginning  of  the 
period  the  fundamental  doctrine  of  international  law  was 
the  equality  of  all  states  great  or  small,  and  this  idea,  as  one 
might  expect,  was  fully  recognized  and  insisted  on  during 
the  first  fifty  years  of  the  century.  There  was  little  devel- 
opment in  the  law  otherwise.  Each  nation  adopted  and 
enforced  its  own  idea  of  national  rights,  and  was  power- 
less to  force  its  ideas  upon  other  nations.  When,  at  the 
beginning  of  the  century,  France  set  up  her  absurd  notions 
of  her  own  national  rights,  other  nations  were  powerless  to 
restrain  or  to  teach  her.  There  was  no  international  legis- 
lature or  court,  no  method  of  declaring  or  of  developing 


17.     BEALE:   JURISPRUDENCE  563 

the  law  of  nations.  Each  state  was  a  law  to  itself,  giving 
little  more  than  lip  service  to  a  vague  body  of  rather  gen- 
erally accepted  principles.  The  alliance  to  conquer  Napo- 
leon, to  be  sure,  brought  several  great  nations  into  a  common 
undertaking;  but  this  alliance,  while  of  political  impor- 
tance, added  nothing  to  the  growth  of  the  law. 

In  the  last  half  of  the  century,  however,  there  has  been 
an  enormous  development  of  combinations,  both  to  affect 
and  to  enforce  law ;  and  resulting  therefrom  a  development 
of  the  substance  of  the  law  itself.  The  associations  of  civi- 
lized nations  to  suppress  the  slave  trade  both  made  and 
enforced  a  new  law.  The  concert  on  the  Eastern  question, 
the  Congress  of  Paris,  the  joint  action  of  the  Powers  in  the 
case  of  Greece  and  Crete,  and  in  the  settlement  of  the  ques- 
tions raised  by  the  Russo-Turkish  and  Japanese  wars,  the 
Geneva  and  the  Hague  conventions,  are  all  proofs  of  the 
increasing  readiness  of  the  Great  Powers  to  make,  declare, 
and  enforce  doctrines  of  law ;  and  they  have  not  hesitated, 
in  case  of  need,  to  make  their  action  binding  upon  weaker 
states,  disregarding,  for  the  good  of  the  world,  the  technical 
theory  of  the  equality  of  all  states.  While  all  independent 
states  are  still  free,  they  are  not  now  regarded  as  free  to 
become  a  nuisance  to  the  world.  Perhaps  the  most  striking 
change  in  the  substance  of  international  law  has  been  the 
extraordinary  development  of  the  law  of  neutrality.  A 
hundred  years  ago  the  rights  and  the  obligations  of  neutrals 
were  ill  defined  and  little  enforced.  To-day  they  form  a 
principal  theme  of  discussion  in  every  war,  and  the  neutral 
nations,  for  the  good  of  the  whole  world,  force  the  bellig- 
erents to  abate  somewhat  from  their  freedom  of  action. 

It  may  be  worth  while,  in  order  to  see  how  far  this  con- 
stitutional change  has  progressed,  to  look  for  a  moment  at 
the  present  condition  of  the  constitutional  law  of  nations. 
We  have  a  body  of  states  known  as  the  "  Great  Powers  " 
which  have  assumed  the  regulation  of  the  conduct  of  all 
nations.  In  this  hemisphere  the  United  States  is  sponsor  for 
all  the  smaller  independent  nations.  „  In  Europe  the  Great 
Powers  exercise  control  over  the  whole  of  Europe  and  Africa 
and  a  large  part  of  Asia,  while  in  the  extreme  Orient  Japan 


564        IV.     THE   NINETEENTH   CENTURY 

seems  likely  to  occupy  a  position  similar  to  our  own  in  the 
western  hemisphere.  The  constitutional  position  of  this  Con- 
federation of  Powers  is  not  unlike  that  of  the  states  of  the 
American  Confederation  in  1780,  and  in  certain  ways  it  is 
even  further  developed.  Its  legislation  is  not  in  the  hands 
of  a  permanent  congress,  but  it  is  accomplished  by  mutual 
consultation.  For  action,  as  Lord  Salisbury  once  informed 
the  world,  "  unanimous  consent  is  required,"  as  was  the  case 
in  our  Confederation.  Executive  power  has  been  exercised 
several  times  either  by  the  joint  show  of  force  by  two  or 
more  powers,  or  by  deputing  one  power  to  accomplish  the 
desired  result.  The  judiciary,  as  a  result  of  the  Hague 
Convention,  is  much  further  developed  than  was  that  of  the 
Confederation,  even  after  1781.  All  of  this  has  been  accom- 
plished in  fifty  years,  and  the  prospect  of  peace  and  pros- 
perity for  the  whole  world  as  a  result  of  its  further  develop- 
ment is  most  promising. 

The  progress  that  has  been  described  is  well  indicated  by 
the  course  of  the  movement  for  codification. 

Just  a  hundred  years  ago  the  first  of  the  French  Codes 
was  adopted.  These  codes  had  two  purposes:  first,  to  unify 
the  law  which,  before  the  adoption  of  the  codes,  had  differed 
in  every  province  and  every  commune  of  France;  second, 
to  simplify  it  so  that  every  one  might  know  the  law.  The 
first  purpose  appealed  most  strongly  to  lawyers  and  to 
statesmen.  The  second  appealed  to  the  people  generally. 
Whatever  reason  weighed  most  with  Napoleon,  there  is  no 
doubt  which  made  the  codes  permanent.  The  people  of 
France,  and  of  the  other  countries  where  they  were  intro- 
duced, bailee!  them  as  creating  a  law  for  the  common  people. 
They  persisted  in  most  countries  where  they  had  been  intro- 
duced by  Napoleon's  arms  in  spite  of  the  later  change  in  gov- 
ernment; whether  the  country  on  which  they  had  been  im- 
posed was  Flemish,  German,  Swiss,  or  Italian,  it  retained  the 
codes  after  the  defeat  of  Napoleon,  and  they  have  remained 
almost  the  sole  relic  of  his  rule,  the  only  governmental  affairs 
which  retain  his  name,  and,  except  Pan-Germanism,  the  only 
lasting  monument  of  his  labor.  They  persisted  because  they 


17.    BEALE:  JURISPRUDENCE  565 

were  in  consonance  with  the  individualistic  feelings  of  the 
times. 

Bentham  urged  codification  on  England  for  the  same 
reason : 

"  That  which  we  have  need  of  (need  we  say  it?)  is  a  body 
of  law,  from  the  respective  parts  of  which  we  may  each  of 
us,  by  reading  them  or  hearing  them  read,  learn,  and  on 
each  occasion  know,  what  are  his  rights,  and  what  his  duties." 

The  code,  in  his  plan,  was  to  make  every  man  his  own 
lawyer,  and  the  spirit  of  individualism  could  go  no  further 
than  that.  Conservative  England  would  not  take  the  step 
which  Bentham  urged,  but  a  code  prepared  by  one  of  his 
disciples  upon  his  principles  was  finally  adopted  (by  belated 
action)  in  Dakota  and  California,  and  was  acclaimed  as 
doing  away  with  the  science  of  law  and  the  need  of  lawyers. 

The  result  of  the  adoption  of  the  French  Codes  and 
the  Benthamite  Codes  has  been  far  from  what  was  hoped 
and  expected.  They  were  to  make  the  law  certain  and  thus 
diminish  litigation  and  avoid  judge-made  law.  That  litiga- 
tion has  not  been  diminished  by  codification  can  easily  be 
shown  by  comparing  the  number  of  reported  cases  in  the 
states  which  have  adopted  the  codes,  and  in  states  which 
have  not  adopted  them.  As  a  result  of  this  comparison,  we 
find  that  France  has  over  fifteen  volumes  a  year  of  reports 
of  decisions  on  points  of  law,  four  of  them  containing  over 
2500  cases  each ;  England  has  about  ten  volumes  a  year  of 
reports  of  decisions  on  points  of  law,  containing  in  all  about 
900  cases.  California  has  from  three  to  four  volumes  of 
reports  of  decisions  on  points  of  law  each  year;  100  since 
the  adoption  of  the  code  in  1871 ;  Massachusetts  has  two 
to  three  volumes  of  reports  of  decisions  on  points  of  law, 
76  in  all  during  the  same  period.  As  bearing  on  the  avoid- 
ance of  judge-made  law,  which  Bentham,  by  a  curious  igno- 
rance one  is  perhaps  not  quite  justified  in  calling  insane,  re- 
garded as  inferior  to  legislature-made  law,  the  result  of  the 
codes  in  one  or  two  points  will  be  instructive.  The  French 
Code  provided  that  all  actions  ex  delicto  should  be  decided 
by  the  court  as  questions  of  fact,  without  appeal  for  error  of 
law.  Notwithstanding  this  provision,  recourse  has  been  had 


566        IV.     THE   NINETEENTH   CENTURY 

to  the  Court  of  Cassation  and  a  system  of  law  has  been  built 
up  on  judicial  decisions  similar  in  character  and  compara- 
ble in  amount  to  that  built  up  in  England  in  the  same  way 
during  the  same  period.  There  is,  for  instance,  a  French  law 
of  libel  which  must  be  learned,  not  from  the  code  but  from 
the  pages  of  Dalloz  and  the  Pandectes  Fran9aises,  just  as 
our  law  of  libel  must  be  studied  in  the  law  reports  and  the 
digests.  Even  if  a  point  is  apparently  covered  by  an  express 
provision  of  the  code,  judicial  decisions  may  affix  a  meaning 
to  the  provision  which  can  be  known  only  to  a  student  of  law. 
Thus  the  French  Code  appears  to  lay  down  the  proposition 
that  capacity  to  contract  is  governed  by  the  law  of  the 
party's  nation,  yet  the  French  courts  refuse  to  apply  this 
principle,  and  instead  of  it  apply  the  French  law  of  capac- 
ity in  each  case  where  the  other  party  to  the  agreement  is 
a  Frenchman  who  acted  bona  fide  or  where  the  party  to 
be  bound  was  commorant  and  doing  business  in  France. , 
These  are  two  examples  only  out  of  many  that  might  be 
cited  of  the  failure  of  the  code  to  fulfill  the  hopes  of  its 
individualist  sponsor.  If  we  leave  the  French  Code  and 
come  to  those  in  our  own  country,  we  shall  find  the  same 
process  going  on.  The  law  of  California  has  been  developed 
in  much  the  same  way  since  the  adoption  of  the  code  as 
before,  and  the  common  law  decisions  of  other  states  are  as 
freely  cited  by  her  courts  as  authority  as  if  her  own  law  had 
never  been  codified.  The  uncertainty  and  confusion  caused 
by  the  adoption  of  the  New  York  Civil  Code  of  Procedure 
is  a  well-known  scandal. 

It  is  true  that  Bentham  objected  to  the  French  Code  as 
imperfect  and  made  upon  the  wrong  principle,  and  that  Field 
objected  to  the  New  York  Code  of  Civil  Procedure  as  finally 
adopted.  These  objections  were  most  characteristic.  Every 
codifier  desires  not  merely  a  code  but  his  own  code,  and  will 
not  be  satisfied  with  any  other.  Hence  it  follows  that  no 
complete  code  can  be  adopted  which  would  be  satisfactory  to 
many  experts  in  law.  Furthermore,  no  codifier  will  be  satis- 
fied to  accept  the  judgment  of  a  court  or  any  body  of  other 
men  upon  the  meaning  of  his  code,  nor  to  accept  the  inter- 
pretation of  the  executive  department  on  the  proper  execution 


17.     BE  ALE:   JURISPRUDENCE  567 

of  the  law.  It  will  follow  that  each  codifier  of  the  Benthamite 
type  must  be  legislature,  judge,  and  sheriff,  and  the  logical 
result  (like  the  logical  result  of  all  individualism  carried 
to  an  extreme)  is  anarchy. 

This  failure  of  the  hope  of  the  individualistic  codifiers  and 
the  change  in  the  spirit  of  the  age  have  affected  our  ideal  of 
codification.  The  purpose  of  the  modern  codifiers  is  not  to 
state  the  law  completely,  but  to  unify  the  law  of  a  country 
which  at  present  has  many  systems  of  law,  or  to  state  the 
law  in  a  more  artistic  way.  In  other  words,  the  spirit  of  the 
modern  codifiers  is  not  individualistic  but  centralizing.  Thus 
the  modern  European  codes  of  Italy,  Spain,  and  Germany 
were  adopted  in  countries  where  a  number  of  different  sys- 
tems of  law  prevailed,  and  the  purpose  of  codification  in  each 
state  was  principally  to  adopt  one  system  of  law  for  the 
whole  country,  and  incidentally  to  make  the  expression  of 
the  law  conform  to  the  results  of  legal  scholarship.  The 
same  purpose  is  at  the  basis  of  the  American  Commission 
for  the  Uniformity  of  Legislation.  The  purpose  of  the 
English  codifiers  appears  to  be  merely  an  artistic  one.  It 
cannot  be  better  expressed  than  by  the  last  great  disciple 
of  Bentham,  Professor  Holland.  The  law  expressed  in  a 
code,  he  says,  "  has  no  greater  pretensions  to  finality  than 
when  expressed  in  statutes  and  reported  cases.  Clearness, 
not  finality,  is  the  object  of  a  code.  It  does  not  attempt 
impossibilities,  for  it  is  satisfied  with  presenting  the  law  at 
the  precise  stage  of  elaboration  at  which  it  finds  it ;  neither 
is  it  obstructively  rigid,  for  deductions  from  the  general  to 
the  particular  and  '  the  competition  of  opposite  analogies  ' 
are  as  available  for  the  decision  of  new  cases  under  a  code, 
as  under  any  other  form  in  which  the  law  may  be  embodied. 
...  It  defines  the  terminus  a  quo,  the  general  principle 
from  which  all  legal  arguments  must  start.  .  .  .  The  task 
to  which  Bentham  devoted  the  best  powers  of  his  intellect 
has  still  to  be  commenced.  The  form  in  which  our  law  is  ex- 
pressed remains  just  what  it  was." 

Such  a  code  as  he  describes  is  really  very  far  from  the 
ideal  of  Bentham.  It  does  not  do  away  with  judge-made 
law;  it  does  not  enable  the  individual  to  know  the  law  for 


568        IV.     THE   NINETEENTH   CENTURY 

himself;  its  only  claim  is  that  it  facilitates  the  acquisition 
of  knowledge  by  the  lawyer  by  placing  his  material  for  study 
in  a  more  orderly  and  logical  form.  The  cherished  ideals  of 
the  reformers  of  a  hundred  years  ago  have  been  abandoned, 
and  an  ideal  has  been  substituted  which  is  quite  in  accordance 
with  the  spirit  of  our  own  times. 

The  most  striking  characteristic  of  the  progress  of  juris- 
prudence in  the  first  half  of  the  century  was  its  increasing 
recognition  of  individual  rights  and  protection  of  individ- 
uals. Humanity  was  the  watchword  of  legislation ;  liberty 
was  its  fetich.  Slavery  was  abolished,  married  women  were 
emancipated  from  the  control  of  their  husbands,  the  head 
of  the  family  was  deprived  of  many  of  his  arbitrary  powers, 
and  the  rights  of  dependent  individuals  were  carefully 
guarded.  In  the  administration  of  criminal  law  this  is  seen 
notably.  At  the  beginning  of  the  century  torture  prevailed 
in  every  country,  outside  of  the  jurisdiction  of  the  common 
law  and  the  French  Codes,  but  torture  was  abolished  in  every 
civilized  state  during  this  period.  Many  crimes  at  the  begin- 
ning of  the  century  were  punishable  with  death.  Few  re- 
mained so  punishable  at  the  end  of  fifty  years.  The  accused 
acquired  in  reality  the  rights  of  an  innocent  person  until  he 
was  found  guilty.  He  could  testify,  he  could  employ  counsel 
and  could  be  informed  of  the  charge  against  him  in  language 
that  he  was  able  to  understand;  and,  even  after  conviction, 
his  punishment  was  inflicted  in  accordance  with  the  dictates 
of  humanity.  Imprisonment  for  debt  was  abolished.  Bank- 
ruptcy was  treated  as  a  misfortune,  not  a  crime. 

As  with  the  emancipation  of  individuals,  so  it  was  with 
the  emancipation  of  states.  The  spirit  of  the  times  favored 
the  freedom  of  the  oppressed  nations  as  well  as  of  individual 
slaves.  The  whole  civilized  world  helped  the  Greeks  gain 
their  independence.  The  American  people  hailed  with  touch- 
ing unanimity  the  struggles  of  Poland  and  of  Hungary  for 
freedom,  and  even  the  black  republics  of  the  West  Indies" 
were  loved  for  their  name,  though  they  had  no  other  ad- 
mirable qualities. 

While  there  has  been  little  actual  reaction  in  the  last  half- 
century  against  this  earlier  development  of  the  law  in  the 


17.     BEALE:   JURISPRUDENCE  569 

direction  of  liberty,  there  have  been  few  further  steps  in  that 
direction.  The  zeal  for  emancipation  has  in  fact  spent  its 
force,  because  freedom,  quite  as  great  as  is  consistent  with 
the  present  state  of  civilization,  has  already  been  obtained. 
So  far  as  there  has  been  any  change  of  sentiment  and  of 
law  in  the  last  generation,  it  has  been  in  the  direction  of 
disregarding  or  of  limiting  rights  newly  acquired  in  the 
earlier  period.  France,  which  secured  the  freedom  of  Italy, 
threatens  the  independence  of  Siam;  England,  which  was 
foremost  in  the  emancipation  of  the  slaves,  introduces  coolie 
labor  into  the  mines  of  South  Africa ;  America,  which  clam- 
ored for  an  immediate  recognition  of  the  independence  of 
Hungary,  finds  objections  to  recognizing  the  independence  of 
Panama  and  refuses  independence  to  the  Philippines.  In  the 
criminal  law  there  has  been  no  reform,  though  there  has 
been  much  improvement,  since  1850.  Married  women  have 
obtained  few  further  rights,  principally  because  there  were 
few  left  for  them  to  acquire,  and,  while  we  have  freed  our 
slaves,  we  have  encouraged  trade  unionism.  In  short,  the 
humanitarian  movement  of  two  generations  ago  which  pro- 
foundly affected  the  law  of  the  civilized  world  for  fifty  years 
has  ceased  to  influence  the  course  of  jurisprudence. 

The  most  characteristic  development  of  the  law  during 
the  last  fifty  years  has  been  in  the  direction  of  business  com- 
bination and  association.  A  few  great  trading  companies 
had  existed  in  the  middle  ages ;  the  Hanse  merchants,  the 
Italian,  Dutch,  and  English  companies  wielded  great  power. 
They  were  exceptional  organizations,  and  almost  all  had 
ceased  to  act  by  1860.  The  modern  form  of  business  asso- 
ciation, the  private  corporation  with  limited  liability,  is  a 
recent  invention.  Such  corporations  were  created  by  special 
action,  by  sovereign  or  legislature,  in  small  though  increas- 
ing numbers  all  through  the  last  century ;  but  during  the 
last  generation  every  civilized  country  has  provided  general 
laws  under  which  they  might  be  formed  by  mere  agreement 
of  the  individuals  associated.  Now  the  anonymous  societies 
of  the  Continent,  the  joint-stock  companies  of  England  and 
her  colonies,  and  the  corporations  of  the  United  States,  all 
different  forms  of  the  limited  liability  association  for  busi- 


570        IV.     THE   NINETEENTH   CENTURY 

ness,  have  engrossed  the  important  industries  of  the  world. 
Different  countries  are  competing  for  the  privilege  of  endow- 
ing these  associations  with  legal  existence.  Corporations  are 
formed  in  one  state  to  act  in  all  other  states  or  in  some  one 
other  state,  or  (it  may  be)  anywhere  in  the  world  except  in 
the  state  which  gave  them  being;  and  so  in  the  last  fifty 
years  an  elaborate  law  of  foreign  corporations  has  grown 
up  all  over  the  civilized  world.  But  the  corporation  is  only 
one  form  of  business  combination  which  has  become  impor- 
tant. Greater  combinations  of  capital  have  been  formed, 
that  is,  the  so-called  trusts ;  great  combinations  of  laboring 
men  have  been  formed,  the  so-called  unions  *.  and  the  enor- 
mous power  wielded  by  such  combinations  has  been  exercised 
through  monopolies,  strikes,  and  boycotts.  All  these  com- 
binations have  been  formed  under  the  law  as  it  has  been  devel- 
oped, and  all  are  legal.  Furthermore,  the  great  business 
operations  have  come  to  depend  more  and  more  upon  facil- 
ities for  transportation,  and  great  railroads  and  other  com- 
mon carriers  have  come  to  be  equal  factors  with  the  trusts 
and  the  unions  in  the  operations  of  modern  business.  The 
first  effect,  then,  of  the  ideas  of  the  present  age  upon  the  law 
is  its  development  in  the  direction  of  forming  great  com- 
mercial associations  into  legal  entities  wielding  enormous 
commercial  power. 

If  such  associations  had  been  formed  seventy-five  years 
ago,  the  spirit  of  the  age  would  have  left  them  free  to  act 
as  they  pleased.  Freedom  from  restraint  being  the  spirit  of 
the  times,  it  would  have  been  thought  unwise  to  restrain  that 
freedom  in  the  case  of  a  powerful  monopoly  as  much  as  in 
the  case  of  a  poor  slave.  But  at  the  present  time  we  are 
more  anxious  for  the  public  welfare  than  for  the  welfare  of 
any  individual,  even  of  so  powerful  a  one  as  a  "labor  union 
or  trust,  and  in  accordance  with  the  genius  of  our  age  the 
law  has  developed  and  is  now  developing  in  the  direction 
of  restraint  upon  the  freedom  of  action  of  these  great  com- 
binations, so  far  as  such  restraint  is  necessary  to  serve  the 
public  interest.  For  centuries  innkeepers  and  carriers  have 
been  subject  to  such  restraint,  though  little  control  was  in 
fact  exercised  until  within  the  last  fifty  years.  To-day  the 


17.     BEALE:   JURISPRUDENCE  571 

law  not  only  requires  every  public  service  company  to  refrain 
from  discrimination  and  from  aggrandizing  itself  at  the 
expense  of  the  public,  but  the  trusts  and  the  unions  also  are 
similarly  restricted.  The  principle  of  freedom  of  action, 
the  courts  in  all  questions  now  agree,  rests  upon  the  doc- 
trine that  the  interests  of  the  public  are  best  subserved 
thereby,  and  applies  only  so  far  as  that  is  true.  When 
freedom  of  action  is  injurious  to  the  public  it  not  only  may 
be,  but  it  must  be,  restrained  in  the  public  interest.  That 
is  the  spirit  of  our  age,  and  that  is  the  present  position  of 
the  law  when  face  to  face  with  combinations  such  as  have 
been  created  in  the  last  generation.  An  interesting  example 
of  restriction  is  that  almost  universally  placed  upon  foreign 
corporations.  In  the  competition  of  certain  states  for  the 
privilege  of  issuing  charters,  great  powers  have  been  con- 
ferred, which  were  regarded  as  against  the  public  policy 
of  the  states  in  which  the  corporations  desired  to  act.  Strict 
regulations  for  the  action  of  such  corporations  have  resulted, 
imposed  in  the  European  countries  usually  by  treaty,  in 
England  and  America  by  statute. 

A  summary  of  the  history  of  jurisprudence  in  the  last 
hundred  years  would  be  incomplete  without  a  consideration 
of  legal  scholarship  during  the  period  and  of  the  results 
of  the  scientific  study  of  law.  The  reformers  of  a  hundred 
years  ago  were  profoundly  indifferent  to  the  history  of  law. 
Bentham,  the  founder  of  so-called  analytic  jurisprudence, 
wished  not  to  understand  the  existing  law,  but  to  abolish 
it  root  and  branch,  and  to  build  a  new  system,  the  principles 
of  which  should  be  arrived  at  merely  by  deductive  reasoning. 
It  seems  to  us  now  almost  impossible  that  such  a  man  should 
have  believed  himself  more  capable  of  framing  a  practicable 
and  just  system  of  law  than  all  his  wise  predecessors,  but 
Bentham  was  a  marvel  of  egotism  and  self-conceit,  and  his 
reasoning  powers  were  far  from  sound.  He  seems  to  have 
been  incapable  of  understanding  the  nature  of  law.  "  If," 
he  said,  "  we  ask  who  it  is  that  the  Common  Law  has  been 
made  by,  we  learn  to  our  inexpressible  surprise,  that  it  has 
been  made  by  nobody ;  that  it  is  not  made  by  King,  Lords, 
and  Commons,  nor  by  anybody  else ;  that  the  words  of  it  are 


572.       IV.     THE   NINETEENTH   CENTURY 

not  to  be  found  anywhere;  that,  in  short,  it  has  no  exist- 
ence ;  it  is  a  mere  fiction ;  and  that  to  speak  of  it  as  having 
any  existence  is  what  no  man  can  do,  without  giving  cur- 
rency to  an  imposture."  Employing  the  same  reasoning,  he 
would  have  concluded  that  justice,  not  being  made  by  King, 
Lords,  or  Commons,  nor  by  anybody  else,  had  no  existence; 
that  truth,  since  the  words  of  it  are  not  to  be  found  any- 
where, is  a  mere  fiction.  But  these  defects  are  too  often 
found  in  reformers.  The  humanitarian  age  brought  enor- 
mous benefits  to  the  world,  but  its  ideas  were  often  ignorant, 
crude,  and  impracticable,  and  needed  to  be  modified  by  the 
better  instructed  minds  of  the  present  constructive  age. 
While  Bentham  was  at  the  height  of  his  power,  the  His- 
torical School  of  Jurists  in  Germany  was  beginning  its  great 
work.  Savigny  was  already  preaching  the  necessity  of 
understanding  the  history  of  law  before  it  was  reformed. 
Mittermaier  and  Brunner  were  to  follow  and  carry  on  the 
work  of  the  master.  The  unity  of  the  past  and  present, 
and  the  need  of  conforming  the  law  of  a  people  to  its  needs 
were  among  their  fundamental  principles.  Bentham  had 
said,  "  if  a  foreigner  can  make  a  better  code  than  an  Eng- 
lishman we  should  adopt  it."  Savigny  said,  with  greater 
truth  and  knowledge  of  human  nature,  that  no  system  of 
law,  however  theoretically  good,  could  be  successfully  im- 
posed upon  a  people  which  had  not  by  its  past  experience 
become  prepared  for  it. 

The  impulse  given  to  legal  study  by  the  work  of  Savigny 
and  his  school  has  in  the  last  generation  spread  over  the 
civilized  world  and  profoundly  influenced  its  legal  thought. 
The  Italians,  the  natural  lawyers  of  the  world,  have  increased 
their  power  by  adopting  his  principles.  In  England  a  small 
but  important  school  of  legal  thinkers  have  followed  the  his- 
torical method,  and  in  the  United  States  it  has  obtained  a 
powerful  hold.  The  spirit  of  the  age,  here  too,  has  sup- 
ported it.  We  are  living  in  an  age  of  scientific  scholarship. 
We  have  abandoned  the  subjective  and  deductive  philosophy 
of  the  middle  ages,  and  we  learn  from  scientific  observation 
and  from  historical  discovery.  The  newly  accepted  prin- 
ciples of  observation  and  induction,  applied  to  the  law,  have 


17.     BEALE:   JURISPRUDENCE  573 

given  us  a  generation  of  legal  scholars  for  the  first  time  since 
the  modern  world  began,  and  the  work  of  these  scholars  has 
at  last  made  possible  the  intelligent  statement  of  the  prin- 
ciples of  law. 


18.  THE  EXTENSION  OF  ROMAN  AND  ENGLISH 
LAW  THROUGHOUT  THE  WORLD1 

BY  JAMES  BRYCE  2 

i 
/.    The  Regions  Covered  by  Roman  and  English  Law 

FROM  a  general  comparison  of  Rome  and  England  as 
powers  conquering  and  administering  territories  be- 
yond their  original  limits,  it  is  natural  to  pass  on  to  con- 
sider one  particular  department  of  the  work  which  territorial 
extension  has  led  them  to  undertake,  viz.  their  action  as 
makers  of  a  law  which  has  spread  far  out  over  the  world. 
Both  nations  have  built  up  legal  systems  which  are  now  — 
for  the  Roman  law  has  survived  the  Roman  Empire,  and  is 
full  of  vitality  to-day  —  in  force  over  immense  areas  that 
were  unknown  to  those  who  laid  the  foundations  of  both  sys- 
tems. In  this  respect  Rome  and  England  stand  alone  among 
nations,  unless  we  reckon  in  the  law  of  Islam  which,  being 
a  part  of  the  religion  of  Islam,  governs  Musulmans  wherever 
Musulmans  are  to  be  found. 

Roman  law,  more  or  less  modified  by  national  or  local 
family  customs  or  land  customs  and  by  modern  legislation, 
prevails  to-day  in  all  the  European  countries  which  formed 
part  either  of  the  ancient  or  of  the  mediaeval  Roman  Em- 
pire, that  is  to  say,  in  Italy,  in  Greece  and  the  rest  of  South- 
eastern Europe  (so  far  as  the  Christian  part  of  the  popula- 
tion is  concerned),  in  Spain,  Portugal,  Switzerland,  France, 
Germany  (including  the  German  and  Slavonic  parts  of  the 
Austro-Hungarian  monarchy),  Belgium,  Holland.  The 

1  This  essay  appears  as  the  second  essay  in  "  Studies  in  History  and 
Jurisprudence,"  1901,  pp.  73-123  (New  York:  Oxford  University  "Press, 
American  Branch). 

*A  bibliographical  note  of  this  author  is  prefixed  to  essay  No.  10, 
ante,  p.  322. 

674 


18.     BRYCE:   THE   EXTENSION  OF   LAW   575 

only  exception  is  South  Britain,  which  lost  its  Roman  law 
with  the  coming  of  the  Angles  and  Saxons  in  the  fifth  cen- 
tury. The  leading  principles  of  Roman  jurisprudence  pre- 
vail also  in  some  other  outlying  countries  which  have  bor- 
rowed much  of  their  law  from  some  one  or  more  of  the  coun- 
tries already  named,  viz.  Denmark,  Norway,  Sweden,  Russia, 
and  Hungary.  Then  come  the  non-European  colonies  set- 
tled by  some  among  the  above  States,  such  as  Louisiana,  the 
Canadian  province  of  Quebec,  Ceylon,  British  Guiana,  South 
Africa  (all  the  above  having  been  at  one  time  colonies  either 
of  France  or  of  Holland),  German  Africa,  and  French 
Africa,  together  with  the  regions  which  formerly  obeyed 
Spain  or  Portugal,  including  Mexico,  Central  America, 
South  America,  and  the  Philippine  Islands.  Add  to  these 
the  Dutch  and  French  East  Indies,  and  Siberia.  There  is 
also  Scotland,  which  has  since  the  establishment  of  the  Court 
of  Session  by  King  James  the  Fifth  in  1532  built  up  its  law 
out  of  Roman  Civil  and  (to  some  slight  extent)  Roman 
Canon  Law.1 

English  law  is  in  force  not  only  in  England,  Wales,  and 
Ireland  but  also  in  most  of  the  British  colonies.  Quebec, 
Ceylon,  Mauritius,  South  Africa,  and  some  few  of  the  West 
Indian  islands  follow  the  Roman  law.2  The  rest,  including 
Australia,  New  Zealand,  and  all  Canada  except  Quebec, 
follow  English;  as  does  also  the  United  States  (except 
Louisiana,  but  with  the  Hawaiian  Islands),  and  India, 
though  in  India,  as  we  shall  see,  native  law  is  also  admin- 
istered. 

Thus  between  them  these  two  systems  cover  nearly  the 
whole  of  the  civilized,  and  most  of  the  uncivilized  world. 
Only  two  considerable  masses  of  population  stand  outside 
—  the  Musulman  East,  that  is,  Turkey,  North  Africa, 

1  There  is  scarcely  a  trace  of  Celtic  custom  in  modern  Scottish  law. 
The  law  of  land,  however,  is  largely  of  feudal  origin;    and  commercial 
law  has  latterly  been  influenced  by  that  of  England. 

2  In  these  West  Indian  islands,  however,  that  which  remains  of  Span- 
ish law,  as  in  Trinidad  and  Tobago,  and  of  French  law,  as  in  St.  Vin- 
cent,  is   now  comparatively   slight;    and   before  long  the   West    Indies 
(except   Cuba   and   Puerto   Rico,  Guadeloupe  and   Martinique)    will  be 
entirely  under  English  law.    See  as  to  the  British  colonies  generally,  C. 
P.  Ilbert's  Legislative  Methods  and  Forms,  chap.  ix. 


576        IV.     THE   NINETEENTH   CENTURY 

Persia,  Western  Turkistan  and  Afghanistan,  which  obey 
the  sacred  law  of  Islam,  and  China,  which  has  customs  all 
her  own.  It  is  hard  to  estimate  the  total  number  of  human 
beings  who  live  under  the  English  common  law,  for  one  does 
not  know  whether  to  reckon  in  the  semi-savage  natives  of 
such  regions  as  Uganda,  for  instance,  or  Fiji.  But  there 
are  probably  one  hundred  and  thirty  millions  of  civilized 
persons  (without  counting  the  natives  of  India)  who  do: 
and  the  number  living  under  some  modern  form  of  the  Roman 
law  is  still  larger. 

It  is  of  the  process  by  which  two  systems  which  had  their 
origin  in  two  small  communities,  the  one  an  Italian  city,  the 
other  a  group  of  Teutonic  tribes,  have  become  extended  over 
nine-tenths  of  the  globe  that  I  propose  to  speak  in  the  pages 
that  follow.  There  are  analogies  between  the  forms  which 
the  process  took  in  the  two  cases.  There  are  also  contrasts. 
The  main  contrast  is  that  whereas  we  may  say  that  (roughly 
speaking)  Rome  extended  her  law  by  conquest,  that  is,  by 
the  spreading  of  her  power,  England  has  extended  hers  by 
settlement,  that  is,  by  the  spreading  out  of  her  race.  In 
India,  however,  conquest  rather  than  colonization  has  been 
the  agency  employed  by  England,  and  it  is  therefore  between 
the  extension  of  English  law  to  India  and  the  extension 
of  Roman  law  to  the  Roman  Empire  that  the  best  parallel 
can  be  drawn.  It  need  hardly  be  added  that  the  Roman 
law  has  been  far  more  changed  in  descending  to  the  modern 
world  and  becoming  adapted  to  modern  conditions  of 
life  than  the  law  of  England  has  been  in  its  extension  over 
new  areas.  That  extension  is  an  affair  of  the  last  three 
centuries  only,  and  the  whole  history  of  English  law  is  of 
only  some  eleven  centuries  -reckoning  from  Kings  Ine  and 
Alfred,  let  us  say,  to  A.  D.  1900,  or  of  eight,  if  we  begin  with 
King  Henry  the  Second,  whereas  that  of  Roman  law  covers 
twenty-five  centuries,  of  which  all  but  the  first  three  have 
witnessed  the  process  of  extension,  so  early  did  Rome  begin  to 
impose  her  law  upon  her  subjects.  To  the  changes,  however, 
which  have  passed  on  the  substance  of  the  law  we  shall  return 
presently.  Let  us  begin  by  examining  the  causes  and  cir- 
cumstances which  induced  the  extension  to  the  whole  ancient 


18.     BRYCE:   THE   EXTENSION  OF   LAW   577 


world  of  rules  and  doctrines  that  had  grown  up  in  a  small 
city. 

//.     The  Diffusion  of  Roman  Law  by  Conquest 

The  first  conquests  of  Rome  were  made  in  Italy.  They 
did  not,  however,  involve  any  legal  changes,  for  conquest 
meant  merely  the  reduction  of  what  had  been  an  independent 
city  or  group  of  cities  or  tribes  to  vassalage,  with  the  obliga- 
tion of  sending  troops  to  serve  in  the  Roman  armies.  Local 
autonomy  was  not  (as  a  rule)  interfered  with;  and  such 
autonomy  included  civil  jurisdiction,  so  the  Italic  and  Greco- 
Italic  cities  continued  to  be  governed  by  their  own  laws, 
which  in  the  case  at  least  of  Oscan  and  Umbrian  communities 
usually  resembled  that  of  Rome,  and  which  of  course  tended 
to  become  assimilated  to  it  even  before  Roman  citizenship 
was  extended  to  the  Italian  allies.  With  the  annexation  of 
part  of  Sicily  in  A.  D.  230  the  first  provincial  government 
was  set  up,  and  the  legal  and  administrative  problems  which 
Rome  had  to  deal  with  began  to  show  themselves.  Other 
provinces  were  added  in  pretty  rapid  succession,  the  last 
being  Britain  (invaded  under  Claudius  in  A.  D.  43).  Now 
although  in  all  these  provinces  the  Romans  had  to  maintain 
order,  to  collect  revenue  and  to  dispense  justice,  the  condi- 
tions under  which  these  things,  and  especially  the  dispensing 
of  justice,  had  to  be  done  differed  much  in  different  prov- 
inces. Some,  such  as  Sicily,  Achaia,  Macedonia  and  the 
provinces  of  Western  Asia  Minor,  as  well  as  Africa  (i.  e. 
such  parts  of  that  province  as  Carthage  had  permeated), 
were  civilized  countries,  where  law-courts  already  existed  in 
the  cities.1  The  laws  had  doubtless  almost  everywhere  been 
created  by  custom,  for  the  so-called  Codes  we  hear  of  in 
Greek  cities  were  often  rather  in  the  nature  of  political 
constitutions  and  penal  enactments  than  summarized  state- 
ments of  the  whole  private  law;  yet  in  some  cities  the  cus- 
toms had  been  so  summarized.2  Other  provinces,  such  as 

1  Cicero  says  of  Cicily,  "  Siculi  hoc  iure  sunt  ut  quod  civis  cum  cive 
agat,  domi  certet  suis  lepibus;  quod  Siculus  cum  Siculo  non  eiusdem 
civitatis,  ut  de  eo  praetor  iudices  sortiatur."  In  Verrem,  ii.  13,  32. 

*The  laws  of  Gortyn  in  Crete,  recently  published  from  an  inscrip- 
tion discovered  there,  apparently  of  about  500  B.  c.,  are  a  remarkable 


578        IV.     THE   NINETEENTH   CENTURY 

those  of  Thrace,  Transalpine  Gaul,  Spain,  and  Britain,  were 
in  a  lower  stage  of  social  organization,  and  possessed,  when 
they  were  conquered,  not  so  much  regular  laws  as  tribal 
usages,  suited  to  their  rude  inhabitants.  In  the  former  set 
of  cases  not  much  new  law  was  needed.  In  the  latter  set  the 
native  customs  could  not  meet  the  needs  of  communities 
which  soon  began  to  advance  in  wealth  and  culture  under 
Roman  rule,  so  law  had  to  be  created. 

There  were  also  in  all  these  provinces  two  classes  of  in- 
habitants. One  consisted  of  those  who  enjoyed  Roman  citi- 
zenship, not  merely  men  of  Italian  birth  settled  there  but 
also  men  to  whom  citizenship  had  been  granted  (as  for  in- 
stance when  they  retired  from  military  service),  or  the 
natives  of  cities  on  which  (as  to  Tarsus  in  Cilicia,  St.  Paul's 
birthplace)  citizenship  had  been  conferred  as  a  boon.1  This 
was  a  large  class,  and  went  on  rapidly  increasing.  To  it 
pure  Roman  law  was  applicable,  subject  of  course  to  any 
local  customs. 

The  other  class  consisted  of  the  provincial  subjects  who 
were  merely  subjects,  and,  in  the  view  of  the  Roman  law, 
aliens  (peregrlni).  They  had  their  own  laws  or  tribal  cus- 
toms, and  to  them  Roman  law  was  primarily  inapplicable, 
not  only  because  it  was  novel  and  unfamiliar,  so  strange  to 
their  habits  that  it  would  have  been  unjust  as  well  as  prac- 
tically inconvenient  to  have  applied  it  to  them,  but  also  be- 
cause the  Romans,  like  the  other  civilized  communities  of 
antiquity,  had  been  so  much  accustomed  to  consider  private 
legal  rights  as  necessarily  connected  with  membership  of  a 
city  community  that  it  would  have  seemed  unnatural  to  apply 
the  private  law  of  one  city  community  to  the  citizens  of  an- 
other. It  is  true  that  the  Romans  after  a  time  disabused 
their  minds  of  this  notion,  as  indeed  they  had  from  a  corn- 
instance.  Though  not  a  complete  code,  they  cover  large  parts  of  the 
field  of  law. 

1  When  I  speak  of  citizenship,  it  is  not  necessarily  or  generally  polit- 
ical citizenship  that  is  to  he  understood,  hut  the  citizenship  which 
carried  with  it  private  civil  rights  (those  rights  which  the  Romans  call 
connubium  and  commercium,)  including  Roman  family  and  inheritance 
law  and  Roman  contract  and  property  law.  Not  only  the  civilized 
Spaniards  hut  the  hulk  of  the  upper  class  in  Greece  seem  to  have  become 
citizens  by  the  time  of  the  Antonines. 


18.     BRYCE:   THE   EXTENSION  OF   LAW   579 

paratively  early  period  extended  their  own  private  civil 
rights  to  many  of  the  cities  which  had  become  their  subject 
allies.  Still  it  continued  to  influence  them  at  the  time  (B.  c. 
230  to  120)  when  they  were  laying  out  the  lines  of  their 
legal  policy  for  the  provinces. 

Of  that  legal  policy  I  must  speak  quite  briefly,  partly 
because  our  knowledge,  though  it  has  been  enlarged  of  late 
years  by  the  discovery  and  collection  of  a  great  mass  of 
inscriptions,  is  still  imperfect,  partly  because  I  could  not 
set  forth  the  details  without  going  into  a  number  of  tech- 
nical points  which  might  perplex  readers  unacquainted  with 
the  Roman  law.  It  is  only  the  main  lines  on  which  the  con- 
querors proceeded  that  can  be  here  indicated. 

Every  province  was  administered  by  a  governor  with  a 
staff  of  subordinate  officials,  the  higher  ones  Roman,  and 
(under  the  Republic)  remaining  in  office  only  so  long  as  did 
the  governor.  The  governor  was  the  head  of  the  judicial 
as  well  as  the  military  and  civil  administration,  just  as  the 
consuls  at  Rome  originally  possessed  judicial  as  well  as  mili- 
tary and  civil  powers,  and  just  as  the  praetor  at  Rome, 
though  usually  occupied  with  judicial  work,  had  also  both 
military  and  civil  authority.  The  governor's  court  was  the 
proper  tribunal  for  those  persons  who  in  the  provinces  en- 
joyed Roman  citizenship,  and  in  it  Roman  law  was  applied 
to  such  persons  in  matters  touching  their  family  relations, 
their  rights  of  inheritance,  their  contractual  relations  with 
one  another,  just  as  English  law  is  applied  to  Englishmen 
in  Cyprus  or  Hong  Kong.  No  special  law  was  needed  for 
them.  As  regards  the  provincials,  they  lived  under  their 
own  law,  whatever  it  might  be,  subject  to  one  important 
modification.  Every  governor  when  he  entered  his  province 
issued  an  Edict  setting  forth  certain  rules  which  he  proposed 
to  apply  during  .his  term  of  office.  These  rules  were  to  be 
valid  only  during  his  term,  for  his  successor  issued  a  fresh 
Edict,  but  in  all  probability  each  reproduced  nearly  all  of 
what  the  preceding  Edict  had  contained.  Thus  the  same 
general  rules  remained  continuously  in  force,  though  they 
might  be  modified  in  detail,  improvements  which  experience 
had  shown  to  be  necessary  being  from  time  to  time  intro- 


580        IV.     THE   NINETEENTH   CENTURY 

duced.1  This  was  the  method  which  the  praetors  followed  at 
Rome,  so  the  provincial  governors  had  a  precedent  for  it 
and  knew  how  to  work  it.  Now  the  Edict  seems  to  have  con- 
tained, besides  its  provisions  regarding  the  collection  of 
revenue  and  civil  administration  in  general,  certain  more 
specifically  legal  regulations,  intended  to  indicate  the  action 
which  the  governor's  court  would  take  not  only  in  disputes 
arising  between  Roman  citizens,  but  also  in  those  between 
citizens  and  aliens,  and  probably  also  to  some  extent  in  those 
between  aliens  themselves.  Where  the  provisions  of  the  Edict 
did  not  apply,  aliens  would  be  governed  by  their  own  law. 
In  cities  municipally  organized,  and  especially  in  the  more 
civilized  provinces,  the  local  city  courts  would  doubtless  con- 
tinue to  administer,  as  they  had  done  before  the  Romans 
came,  their  local  civil  law;  and  in  the  so-called  free  cities, 
which  had  come  into  the  Empire  as  allies,  these  local  courts 
had  for  a  long  time  a  wide  scope  for  their  action.  Criminal 
law,  however,  would  seem  to  have  fallen  within  the  gov- 
ernor's jurisdiction,  at  any  rate  in  most  places  and  for  the 
graver  offences,  because  criminal  law  is  the  indispensable 
guarantee  for  public  order  and  for  the  repression  of  sedition 
or  conspiracy,  matters  for  which  the  governor  was  of  course 
responsible.2  Thus  the  governor's  court  was  not  only  that 
which  dispensed  justice  between  Roman  citizens,  and 
which  dealt  with  questions  of  revenue,  but  was  also  the  tri- 
bunal for  cases  between  citizens  and  aliens,  and  for  the 
graver  criminal  proceedings.  It  was  apparently  also  a 
court  which  entertained  some  kinds  of  suits  between  aliens, 
as  for  instance  between  aliens  belonging  to  different  cities, 
or  in  districts  where  no  regular  municipal  courts  existed, 
and  (probably)  de"alt  with  appeals  from  those  courts  where 
they  did  exist.  Moreover  where  aliens  even  of  the  same  city 
chose  to  resort  to  it  they  could  apparently  do  so.  I  speak 
of  courts  rather  than  of  law,  because  it  must  be  remembered 
that  although  we  are  naturally  inclined  to  think  of  law  as 

1  As  to  this  see  Essay  XIV,  p.  692  sqq.  [in  the  Author's  Studies,  etc., 
cited  above]. 

*In  S.  Paul's  time,  however,  the  Athenian  Areopagus  would  seem 
to  have  retained  its  jurisdiction;  cf.  Acts  xvii.  19.  The  Romans 
treated  Athens  with  special  consideration. 


18.     BRYCE:   THE   EXTENSION  OF   LAW   581 

coming  first,  and  courts  being  afterwards  created  to  admin- 
ister law,  it  is  really  courts  that  come  first,  and  that  by  their 
action  build  up  law  partly  out  of  customs  observed  by  the 
people  and  partly  out  of  their  own  notions  of  justice.  This, 
which  is  generally  true  of  all  countries,  is  of  course  spe- 
cially true  of  countries  where  law  is  still  imperfectly  de- 
veloped, and  of  places  where  different  classes  of  persons, 
not  governed  by  the  same  legal  rules,  have  to  be  dealt 
with. 

The  Romans  brought  some  experience  to  the  task  of  crea- 
ting a  judicial  administration  in  the  provinces,  where  both 
citizens  and  aliens  had  to  be  considered;  for  Rome  herself 
had  become,  before  she  began  to  acquire  territories  outside 
Italy,  a  place  of  residence  or  resort  for  alien  traders,  so  that 
as  early  as  B.  c.  247  she  created  a  magistrate  whose  special 
function  it  became  to  handle  suits  between  aliens,  or  in  which 
one  party  was  an  alien.  This  magistrate  built  up,  on  the 
basis  of  mercantile  usage,  equity,  and  common  sense,  a  body 
of  rules  fit  to  be  applied  between  persons  whose  native  law 
was  not  the  same;  and  the  method  he  followed  would  natu- 
rally form  a  precedent  for  the  courts  of  the  provincial  gov- 
ernors. 

Doubtless  the  chief  aim,  as  well  as  the  recognized  duty, 
of  the  governors  was  to  disturb  provincial  usage  as  little  as 
they  well  could.  The  temptations  to  which  they  were  ex- 
posed, and  to  which  they  often  succumbed,  did  not  lie  in  the 
direction  of  revolutionizing  local  law  in  order  to  intro- 
duce either  purely  Roman  doctrines  or  any  artificial  uni- 
formity.1 They  would  have  made  trouble  for  themselves  had 
they  attempted  this.  And  why  should  they  attempt  it? 
The  ambitious  governors  desired  military  fame.  The  bad 
ones  wanted  money.  The  better  men,  such  as  Cicero,  and 
in  later  days  Pliny,  liked  to  be  feted  by  the  provincials  and 
have  statues  erected  to  them  by  grateful  cities.  No  one  of 
these  objects  was  to  be  attained  by  introducing  legal  reforms 
which  theory  might  suggest  to  a  philosophic  statesman,  but 

1  One  of  the  charges  against  Verres  was  that  he  disregarded  all  kinds 
of  law  alike.  Under  him,  says  Cicero,  the  Sicilians  "  neque  suas  leges 
neque  nostra  senatus  consulta  neque  communia  iura  tenuerunt ; "  In 
Verr.  i.  4,  13. 


582        IV.     THE   NINETEENTH   CENTURY 

which  nobody  asked  for.  It  seems  safe  to  assume  from  what 
we  know  of  official  human  nature  elsewhere,  that  the  Roman 
officials  took  the  line  of  least  resistance  compatible  with  the 
raising  of  money  and  the  maintenance  of  order.  These 
things  being  secured,  they  would  be  content  to  let  other 
things  alone. 

Things,  however,  have  a  way  of  moving  even  when  officials 
may  wish  to  let  them  rest.  When  a  new  and  vigorous  influ- 
ence is  brought  into  a  mixture  of  races  receptive  rather  than 
resistent  (as  happened  in  Asia  Minor  under  the  Romans), 
or  when  a  higher  culture  acts  through  government  upon  a 
people  less  advanced  but  not  less  naturally  gifted  (as  hap- 
pened in  Gaul  under  the  Romans),  changes  must  follow  in 
law  as  well  as  in  other  departments  of  human  action.  Here 
two  forces  were  at  work.  One  was  the  increasing  number 
of  persons  who  were  Roman  citizens,  and  therefore  lived  by 
the  Roman  law.  The  other  was  the  increasing  tendency  of 
the  government  to  pervade  and  direct  the  whole  public  life 
of  the  province.  When  monarchy  became  established  as  the 
settled  form  of  the  Roman  government,  provincial  adminis^ 
tration  began  to  be  better  organized,  and  a  regular  body  of 
bureaucratic  officials  presently  grew  up.  The  jurisdiction 
of  the  governor's  court  extended  itself,  and  was  supple- 
mented in  course  of  time  by  lower  courts  administering  law 
according  to  the  same  rules.  The  law  applied  to  disputes 
arising  between  citizens  and  non-citizens  became  more  copi- 
ous and  definite.  The  provincial  .Edicts  expanded  and  be- 
came well  settled  as  respects  the  larger  part  of  their  con- 
tents. So  by  degrees  the  law  of  the  provinces  was  imper- 
ceptibly Romanized  in  its  general  spirit  and  leading  concep- 
tions, probably  also  in  such  particular  departments  as  the 
original  local  law  of  the  particular  province  had  not  fully 
covered.  But  the  process  did  not  proceed  at  the  same  rate 
in  all  the  provinces,  nor  did  it  result  in  a  uniform  legal 
product,  for  a  good  deal  of  local  customary  law  remained, 
and  this  customary  law  of  course  differed  in  different  prov- 
inces. In  the  Hellenic  and  Hellenized  countries  the  pre-exist- 
ing law  was  naturally  fuller  and  stronger  than  in  the  West ; 
and  it  held  its  ground  more  effectively  than  the  ruder  usages 


18.     BRYCE:   THE   EXTENSION  OF   LAW   583 

of  Gauls  or  Spaniards,  obtaining  moreover  a  greater  respect 
from  the  Romans,  who  felt  their  intellectual  debt  to  the 
Greeks. 

It  may  be  asked  what  direct  legislation  there  was  during 
this  period  for  the  provinces.  Did  the  Roman  Assembly 
either  pass  statutes  for  them,  as  Parliament  has  sometimes 
done  for  India,  or  did  the  Assembly  establish  in  each  prov- 
ince some  legislative  authority?  So  far  as  private  law  went 
Rome  did  neither  during  the  republican  period.1  The 
necessity  was  not  felt,  because  any  alterations  made  in 
Roman  law  proper  altered  it  for  Roman  citizens  who  dwelt 
in  the  provinces  no  less  than  for  those  in  Italy,  while  as  to 
provincial  aliens,  the  Edict  of  the  governor  and  the  rules 
which  the  practice  of  his  courts  established  were  sufficient 
to  introduce  any  needed  changes.  But  the  Senate  issued 
decrees  intended  to  operate  in  the  provinces,  and  when  the 
Emperors  began  to  send  instructions  to  their  provincial 
governors  or  to  issue  declarations  of  their  will  in  any  other 
form,  these  had  the  force  of  law,  and  constituted  a  body  of 
legislation,  part  of  which  was  general,  while  part  was  special 
to  the  province  for  which  it  was  issued. 

Meantime  —  and  I  am  now  speaking  particularly  of  the 
three  decisively  formative  centuries  from  B.  c.  150  to  A.  b. 
150  —  another  process  had  been  going  on,  even  more  im- 
portant. The  Roman  law  itself  had  been  changing  its  char- 
acter, had  been  developing  from  a  rigid  and  highly  technical 
system,  archaic  in  its  forms  and  harsh  in  its  rules,  prefer- 
ring the  letter  to  the  spirit,  and  insisting  on  the  strict  ob- 
servance of  set  phrases,  into  a  liberal  and  elastic  systerri, 
pervaded  by  the  principles  of  equity  and  serving  the  practi- 
cal convenience  of  a  cultivated  and  commercial  community. 
The  nature  of  this  process  will  be  found  described  in  other 
parts  of  this  volume.2  Its  result  was  to  permeate  the  origi- 
nal law  of  Rome  applicable  to  citizens  only  (ius  civile)  with 
the  law  which  had  been  constructed  for  the  sake  of  dealing 


1The  Lex  Sempronia  mentioned  by  Livy,  xxxv.  7,  seems  to  he  an 
exception,  due  to  very  special  circumstances. 

2  See  Essay  XI,  and  Essay  XIV,  p.  706  [in  the  Author's  Studies,  etc., 
cited  above]. 


584        IV.     THE   NINETEENTH   CENTURY 


with  aliens  (ius  gent'mm)^  so  that  the  product  was  a  body 
of  rules  to  be  used  by  any  civilized  people,  as  being 
grounded  in  reason  and  utility,  while  at  the  same  time  both 
copious  in  quantity  and  refined  in  quality. 

This  result  had  been  reached  about  A.  D.  150,  by  which 
time  the  laws  of  the  several  provinces  had  also  been  largely 
Romanized.  Thus  each  body  of  law  —  if  we  may  venture 
for  this  purpose  to  speak  of  provincial  law  as  a  whole  — 
had  been  drawing  nearer  to  the  other.  The  old  law  of  the 
city  of  Rome  had  been  expanded  and  improved  till  it  was 
fit  to  be  applied  to  the  provinces.  The  various  laws  of  the 
various  provinces  had  been  constantly  absorbing  the  law  of 
the  city  in  the  enlarged  and  improved  form  latterly  given  to 
it.  Thus  when  at  last  the  time  for  a  complete  fusion  ar- 
rived the  differences  between  the  two  had  been  so  much 
reduced  that  the  fusion  took  place  easily  and  naturally,  with 
comparatively  little  disturbance  of  the  state  of  things  al- 
ready in  existence.  One  sometimes  finds  on  the  southern  side 
of  the  Alps  two  streams  running  in  neighbouring  valleys. 
One  which  has  issued  from  a  glacier  slowly-  deposits  as  it 
flows  over  a  rocky  bed  the  white  mud  which  it  brought  from 
its  icy  cradle.  The  other  which  rose  from  clear  springs 
gradually  gathers  colouring  matter  as  in  its  lower  course  it 
cuts  through  softer  strata  or  through  alluvium.  When  at 
last  they  meet,  the  glacier  torrent  has  become  so  nearly  clear 
that  the  tint  of  its  waters  is  scarcely  distinguishable  from 
that  of  the  originally  bright  but  now  slightly  turbid  affluent. 
Thus  Roman  and  provincial  law,  starting  from  different 
points  but  pursuing  a  course  in  which  their  diversities  were 
constantly  reduced,  would  seem  to  have  become  so  similar  by 
the  end  of  the  second  century  A.  D.  that  there  were  few 
marked  divergences,  so  far  as  private  civil  rights  and  rem- 
edies were  concerned,  between  the  position  of  citizens  and 
that  of  aliens. 

Here,  however,  let  a  difference  be  noted.  The  power  of 
assimilation  was  more  complete  in  some  branches  of  law  than 
it  was  in  others  ;  and  it  was  least  complete  in  matters  where 
old  standing  features  of  national  character  and  feeling  were 
present.  In  the  Law  of  Property  and  Contract  it  had  ad- 


18.     BRYCE:   THE   EXTENSION  OF   LAW   585 

vanced  so  far  as  to  have  become,  with  some  few  exceptions,1 
substantially  identical.  The  same  may  be  said  of  Penal  Law 
and  the  system  of  legal  procedure.  But  in  the  Law  of  Fam- 
ily Relations  and  in  that  of  Inheritance,  a  matter  closely 
connected  with  family  relations,  the  dissimilarities  were  still 
significant ;  and  we  shall  find  this  phenomenon  reappearing 
in  the  history  of  English  and  Native  Law  in  India. 

Two  influences  which  I  have  not  yet  dwelt  upon  had  been, 
during  the  second  century,  furthering  the  assimilation.  One 
was  the  direct  legislation  of  the  Emperor  which,  scanty  dur- 
ing the  first  age  of  the  monarchy,  had  now  become  more 
copious,  and  most  of  which  was  intended  to  operate  upon 
citizens  and  aliens  alike.  The  other  was  the  action  of  the 
Emperor  as  supreme  judicial  authority,  sometimes  in  mat- 
ters brought  directly  before  him  for  decision,  more  fre- 
quently as  judge  of  appeals  from  inferior  tribunals.  He 
had  a  council  called  the  Consistory  which  acted  on  his  behalf, 
because,  especially  in  the  troublous  times  which  began  after 
the  reign  of  Marcus  Aurelius  and  presaged  the  ultimate  dis- 
solution of  the  Empire,  the  sovereign  was  seldom  able  to  pre- 
side in  person.  The  judgements  of  the  Consistory,  being 
delivered  in  the  Emperor's  name  as  his,  and  having  equal 
authority  with  statutes  issued  by  him,  must  have  done  much 
to  make  law  uniform  in  all  the  provinces  and  among  all 
classes  of  subjects.2 

///.     The  Establishment  of  One  Law  for  the  Empire 

Finally,  in  the  beginning  of  the  third  century  A.  D.,  the 
decisive  step  was  taken.  The  distinction  between  citizens 
and  aliens  vanished  by  the  grant  of  full  citizenship  to  all 
subjects  of  the  Empire,  a  grant  however  which  may  have 
been,  in  the  first  instance,  applied  only  to  organized  com- 
munities, and  not  also  to  the  backward  sections  of  the  rural 

* 

1  Such  as  the  technical  peculiarities  of  the  Roman  stipulatio,  and  the 
Greek  syngraphe. 

2  These  deer  eta  of  the  Emperor  were  reckoned  among  his  Const  it  u- 
tiones  (as  to  which  see  Essay  XIV,  p.  720  sqq.).     There  does  not  seem 
to  have  been  any  public  record  kept  and  published  of  them,  but  many 
of  them  would  doubtless  become  diffused  through  the  law  schools  and 
otherwise.    The  first  regular  collections  of  imperial  constitutions  known 
to  us  belong  to  a  later  time. 


586        IV.     THE   NINETEENTH   CENTURY 

population,  in  Corsica,  for  instance,  or  in  some  of  the  Alpine 
valleys.  Our  information  as  to  the  era  to  which  this  famous 
Edict  of  Caracalla's  belongs  is  lamentably  scanty.  Gaius, 
who  is  the  best  authority  for  the  middle  period  of  the  law, 
lived  fifty  or  sixty  years  earlier.  The  compilers  of  Jus- 
tinian's Digest,  which  is  the  chief  source  of  our  knowledge 
for  the  law  as  a  whole,  lived  three  hundred  years  later,  when 
the  old  distinctions  between  the  legal  rights  of  citizens  and 
those  of  aliens  had  become  mere  matters  of  antiquarian  curi- 
osity. These  compilers  therefore  modified  the  passages  of 
the  older  jurists  which  they  inserted  in  the  Digest  so  as  to 
make  them  suit  their  own  more  recent  time.  As  practical 
men  they  were  right,  but  they  have  lessened  the  historical 
value  of  these  fragments  of  the  older  jurists,  just  as  the 
modern  restorer  of  a  church  spoils  it  for  the  purposes  of 
architectural  history,  when  he  alters  it  to  suit  his  own  ideas 
of  beauty  or  convenience.  Still  it  may  fairly  be  assumed 
that  when  Caracalla's  grant  of  citizenship  was  made  the 
bulk  of  the  people,  or  at  least  of  the  town  dwellers,  had  al- 
ready obtained  either  a  complete  or  an  incomplete  citizenship 
in  the  more  advanced  provinces,  and  that  those  who  had  not 
were  at  any  rate  enjoying  under  the  provincial  Edicts  most 
of  the  civil  rights  that  had  previously  been  confined  to  citi- 
zens, such  for  instance  as  the  use  of  the  so-called  Praetorian 
Will  with  its  seven  seals. 

How  far  the  pre-existing  local  law  of  different  provinces 
or  districts  was  superseded  at  one  stroke  by  this  extension 
of  citizenship,  or  in  other  words,  what  direct  and  immediate 
change  was  effected  in  the  modes  of  jurisdiction  and  in  the 
personal  relations  of  private  persons,  is  a  question  which 
we  have  not  the  means  of  answering.  Apparently  many  dif- 
ficulties arose  which  further  legislation,  not  always  con- 
sistent, was  required  to  deal  with.1  One  would  naturally 
suppose  that  "where  Roman  rules  differed  materially  from 
those  which  a  provincial  community  had  followed,  the  latter 
could  not  have  been  suddenly  substituted  for  the  former. 

JSee  upon  this  subject  the  learned  and  acute  treatise  (by  which  I 
have  been  much  aided)  of  Dr.  I,.  Mitteis,  Reichsrecht  iind  Volksrecht 
in  den  ostlichen  Provinzen  des  Romischen  Kaiserreichs,  Chap.  .VI. 


18.     BRYCE:    THE    EXTENSION   OF    LAW  587 

A  point,  for  instance,  about  which  we  should  like  to  be 
better  informed  is  whether  the  Roman  rules  which  gave  to 
the  father  his  wide  power  over  his  children  and  their  children 
were  forthwith  extended  to  provincial  families.  The  Romans 
themselves  looked  upon  this  paternal  power  as  an  institution 
peculiar  to  themselves.  To  us  moderns,  and  especially  to 
Englishmen  and  Americans,  it  seems  so  oppressive  that  we 
cannot  but  suppose  it  was  different  in  practice  from  what  it 
looks  on  paper.  And  although  it  had  lost  some  of  its  old 
severity  by  the  time  of  the  Antonines,  one  would  think  that 
communities  which  had  not  grown  up  under  it  could  hardly 
receive  it  with  pleasure. 

From  the  time  of  Caracalla  (A.  D.  211-217)  down  till  the 
death  of  Theodosius  the  Great  (A.  D.  395)  the  Empire  had 
but  one  law.  There  was  doubtless  a  certain  amount  of 
special  legislation  for  particular  provinces,  and  a  good  deal 
of  customary  law  peculiar  to  certain  provinces  or  parts  of 
them.  Although  before  the  time  of  Justinian  it  would  seem 
that  every  Roman  subject,  except  the  half-barbarous  peoples 
on  the  frontiers,  such  as  the  Soanes  and  Abkhasians  of  the 
Caucasus  or  the  Ethiopic  tribes  of  Nubia,  and  except  a 
very  small  class  of  freedmen,  was  in  the  enjoyment  of  Roman 
citizenship,  with  private  rights  substantially  the  same,  yet 
it  is  clear  that  in  the  East  some  Roman  principles  and 
maxims  were  never  fully  comprehended  by  the  mass  of  the 
inhabitants  and  their  legal  advisers  of  the  humbler  sort, 
while  other  principles  did  not  succeed  in  displacing  alto- 
gether the  rules  to  which  the  people  were  attached.  We 
have  evidence  in  recently  recovered  fragments  of  an  appar- 
ently widely  used  law-book,  Syriac  and  Armenian  copies  of 
which  remain,  that  this  was  the  case  in  the  Eastern  prov- 
inces, and  no  doubt  it  was  so  in  others  also.  In  Egypt,  for 
instance,  it  may  be  gathered  from  the  fragments  of  papyri 
which  are  now  being  published,  that  the  old  native  customs, 
overlaid,  or  re-moulded  to  sortie  extent  by  Greek  law,  held 
their  ground  even  down  to  the  sixth  or  seventh  century.1 

1  This  is  carefully  worked  out  both  as  to  Syria  and  to  Egypt  by  Dr. 
Mitteis,  op.  cit.  He  thinks  (pp.  30-33)  that  the  law  of  the  Syrian  book, 
where  it  departs  from  pure  Roman  law  as  we  find  it  in  the  Corpus 
luris,  is  mainly  of  Greek  origin,  though  with  traces  of  Eastern  custom. 


588        IV.     THE   NINETEENTH    CENTURY 

Still,  after  making  all  allowance  for  these  provincial  varia- 
tions, philosophic  jurisprudence  and  a  levelling  despotism 
had  done  their  work,  and  given  to  the  civilized  world,  for 
the  first  and  last  time  in  its  history,  one  harmonious  body 
of  legal  rules. 

The   causes   which   enabled   the   Romans   to   achieve   this 
result  were,  broadly  speaking,  the  five  following :  — 

(1)  There  was  no  pre-existing  body  of  law  deeply  rooted 
and   strong   enough   to    offer    resistance   to   the    spread    of 
Roman  law.     Where  any  highly  developed  system  of  written 
rules  or  customs  existed,  it  existed  only  in  cities,  such  as 
those  of  the  Greek  or  Graecized  provinces  on  both  sides  of 
the  Aegean.     The  large  countries,  Pontus,  for  instance,  or 
Macedonia  or  Gaul,  were  in  a  legal   sense  unorganized  or 
backward.     Thus  the  Romans  had,  if  not  a  blank  sheet  to 
write  on,  yet  no  great  difficulty  in  overspreading  or  dealing 
freely  with  what  they  found. 

(2)  There  were  no  forms  of  faith  which  had  so  interlaced 
religious  feelings  and  traditions  with  the  legal  notions  and 
customs  of  the  people  as  to  give  those  notions  and  customs 
a   tenacious   grip   on   men's    affection.      Except   among   the 
Jews,  and  to  some  extent  among  the  Egyptians,  Rome  had 
no  religious  force  to  overcome  such  as  Islam  and  Hinduism 
present  in  India. 

(3)  The  grant  of  Roman  citizenship  to  a  community  or 
an  individual  was  a  privilege  highly  valued,  because  it  meant 
a  rise  in  social  status  and  protection  against  arbitrary  treat- 
ment by  officials.     Hence  even  those  who  might  have  liked 
their  own  law  better  were  glad  to  part  with  it  for  the  sake 
of  the  immunities  of  a  Roman  citizen. 

(4)  The  Roman  governor  and  the  Roman  officials  in  gen- 
eral had  an  administrative  discretion  wider  than  officials  en- 
joy  under  most   modern    governments,   and   certainly   wider 
than  either  a  British  or  an  United  States  legislature  would 

» 

He  also  suggests  that  the  opposition,  undoubtedly  strong,  of  the  Eastern 
Monophysites  to  the  Orthodox  Emperors  at  Constantinople  may  have 
contributed  to  make  the  Easterns  cling  the  closer  to  their  own  custom- 
ary law.  The  Syrian  book  belongs  to  the  fifth  century  A.  D.,  and  is 
therefore  earlier  than  Justinian  (Bruns  und  Sachau,  Syrisch-romischcs 
Rechtsbuch  aus  dem  fiinften  Jahrhundert). 


18.     BRYCE:    THE   EXTENSION   OF   LAW    589 

delegate  to  any  person.  Hence  Roman  governors  could  by 
their  Edicts  and  their  judicial  action  mould  the  law  and  give 
it  a  shape  suitable  to  the  needs  of  their  province  with  a  free- 
dom of  handling  which  facilitated  the  passage  from  local 
law  or  custom  to  the  jurisprudence  of  the  Empire  generally. 

(5)  Roman  law  itself,  i.  e.  the  law  of  the  city,  went  on 
expanding  and  changing,  ridding  itself  of  its  purely  national 
and  technical  peculiarities,  till  it  became  fit  to  be  the  law 
of  the  whole  world.  This  process  kept  step  with,  and  was 
the  natural  expression  of,  the  political  and  social  assimi- 
lation of  Rome  to  the  provinces  and  of  the  provinces  to 
Rome. 

At  the  death  of  Theodosius  the  Great  the  Roman  Empire 
was  finally  divided  into  an  Eastern  and  a  Western  half;  so 
that  thenceforward  there  were  two  legislative  authorities. 
For  the  sake  of  keeping  the  law  as  uniform  as  possible,  ar- 
rangements were  made  for  the  transmission  by  each  Emperor 
to  the  other  of  such  ordinances  as  he  might  issue,  in  order 
that  these  might  be,  if  approved,  issued  for  the  other  half 
of  the  Empire.  These  arrangements,  however,  were  not  fully 
carried  out:  and  before  long  the  Western  Empire  drifted 
into  so  rough  a  sea  that  legislation  practically  stopped. 
The  great  Codex  of  Theodosius  the  Second  (a  collection  of 
imperial  enactments  published  in  A.  D.  438)  was  however 
promulgated  in  the  Western  as  well  as  in  the  Eastern  part 
of  the  Empire,  whereas  the  later  Codex  and  Digest  of  Jus- 
tinian, published  nearly  a  century  later,  was  enacted  only 
for  the  East,  though  presently  extended  (by  re-conquest)  to 
Italy,  Sicily,  and  Africa.  Parts  of  the  Theodosian  Codex 
were  embodied  in  the  manuals  of  law  made  for  the  use  of 
their  Roman  subjects  by  some  of  the  barbarian  kings.  It 
continued  to  be  recognized  in  the  Western  provinces  after 
the  extinction  of  the  imperial  line  in  the  West  in  A.  D.  476 : 
and  was  indeed,  along  with  the  manuals  aforesaid,  the  prin- 
cipal source  whence  during  a  long  period  the  Roman  popu- 
lation drew  their  law  in  the  provinces  out  of  which  the  king- 
doms of  the  Franks,  Burgundians,  and  Visigoths  were 
formed. 

Then  came  the  torpor  of  the  Dark  Ages. 


590        IV.     THE   NINETEENTH   CENTURY 

IV.     The  Extension  of  Roman  Law  after  the  Fall  of  the 
Western  Empire 

Upon  the  later  history  of  the  Roman  law  and  its  diffusion 
through  the  modern  world  I  can  but  briefly  touch,  for  I 
should  be  led  far  away  from  the  special  topic  here  considered. 
The  process  of  extension  went  on  in  some  slight  measure  by 
conquest,  but  mainly  by  peaceful  means,  the  less  advanced 
peoples,  who  had  no  regular  legal  system  of  their  own,  being 
gradually  influenced  by  and  learning  from  their  more  civ- 
ilized neighbours  to  whom  the  Roman  system  had  descended. 
The  light  of  legal  knowledge  radiated  forth  from  two  centres, 
from  Constantinople  over  the  Balkanic  and  Euxine  countries 
between  the  tenth  and  the  fifteenth  centuries,  from  Italy  over 
the  lands  that  lay  north  and  west  of  her  from  the  twelfth 
to  the  sixteenth  century.  Thereafter  it  is  Germany,  Hol- 
land, and  France  that  have  chiefly  propagated  the  impe- 
rial law,  Germany  by  her  universities  and  writers,  France 
and  Holland  both  through  their  jurists  and  as  colonizing 
powers. 

In  the  history  of  the  mediaeval  and  modern  part  of  the 
process  of  extension  five  points  or  stages  of  especial  import 
may  be  noted. 

The  first  is  the  revival  of  legal  study  which  began  in  Italy 
towards  the  end  of  the  eleventh  century  A.  D.,  and  the  prin- 
cipal agent  in  which  was  the  school  of  Bologna,  famous  for 
many  generations  thereafter.  From  that  date  onward  the 
books  of  Justinian,  which  had  before  that  time  been  super- 
seded in  the  Eastern  Empire,  were  lectured  and  commented 
on  in  the  universities  of  Italy,  France,  Spain,  England, 
Germany,  and  have  continued  to  be  so  till  our  own  day.  They 
formed,  except  in  England  (where  from  the  time  of  Henry 
the  Third  onwards  they  had  a  powerful  and  at  last  a  victori- 
ous rival  in  the  Common  Law),  the  basis  of  all  legal  training 
and  knowledge. 

The  second  is  the  creation  of  that  vast  mass  of  rules  for 
the  guidance  of  ecclesiastical  matters  and  courts  —  courts 
whose  jurisdiction  was-  in  the  Middle  Ages  far  wider  than 
it  is  now  —  which  we  call  the  Canon  Law.  These  rules, 


18.     BRYCE:    THE   EXTENSION   OF   LAW    591 

drawn  from  the  canons  of  Councils  and  decrees  of  Popes, 
began  to  be  systematized  during  the  twelfth  century,  and 
were  first  consolidated  into  an  ordered  body  by  Pope  Gregory 
the  Ninth  in  the  middle  of  the  thirteenth.1  They  were  so 
largely  based  on  the  Roman  law  that  we  may  describe  them 
as  being  substantially  a  development  of  it,  partly  on  a  new 
side,  partly  in  a  new  spirit,  and  though  they  competed  with 
the  civil  law  of  the  temporal  courts,  they  also  extended  the 
intellectual  influence  of  that  law. 

The  third  is  the  acceptance  of  the  Roman  law  as  being 
of  binding  authority  in  countries  which  had  not  previously 
owned  it,  and  particularly  in  Germany  and  Scotland.  It 
was  received  in  Germany  because  the  German  king  (after  the 
time  of  Otto  the  Great)  was  deemed  to  be  also  Roman  Em- 
peror, the  legitimate  successor  of  the  far-off  assemblies  and 
magistrates  and  Emperors  of  old  Rome ;  and  its  diffusion 
was  aided  by  the  fact  that  German  lawyers  had  mostly  re- 
ceived their  legal  training  at  Italian  universities.  It  came 
in  gradually  as  subsidiary  to  Germanic  customs,  but  the 
judges,  trained  in  Italy  in  the  Roman  system,  required  the 
customs  to  be  proved,  and  so  by  degrees  Roman  doctrines 
supplanted  them,  though  less  in  the  Saxon  districts,  where  a 
native  law-book,  the  Sachsenspiegel,  had  already  established 
its  influence.  The  acceptance  nowhere  went  so  far  as  to 
supersede  the  whole  customary  law  of  Germany,  whose  land- 
rights,  for  instance,  retained  their  feudal  character.  The 
formal  declaration  of  the  general  validity  of  the  Corpus 
luris  in  Germany  is  usually  assigned  to  the  foundation  by 
the  Emperor  Maximilian  I,  in  1495,  of  the  Imperial  Court  of « 
Justice  (Reichskammergericht) .  As  Holland  was  then  still 
a  part  of  the  Germanic  Empire,  as  well  as  of  the  Burgundian 
inheritance,  it  was  the  law  of  Holland  also,  and  so  has  be- 
come the  law  of  Java,  of  Celebes,  and  of  South  Africa.  In 
Scotland  it  was  adopted  at  the  foundation  of  the  Court  of 
Session,  on  the  model  of  the  Parlement  of  Paris,  by  King 
James  the  Fifth.  Political  antagonism  to  England  and 
political  attraction  to  France,  together  with  the  influence  of 
the  Canonists,  naturally  determined  the  King  and  the  Court 
1  Other  parts  were  added  later. 


592        IV.     THE   NINETEENTH   CENTURY 

to  follow  the  system  which  prevailed  on  the  European  con- 
tinent. 

The  fourth  stage  is  that  of  codification.  In  many  parts 
of  Gaul,  though  less  in  Provence  and  Languedoc,  the  Roman 
law  had  gone  back  into  that  shape  of  a  body  of  customs  from 
which  it  had  emerged  a  thousand  years  before;  and  in 
Northern  and  Middle  Gaul  some  customs,  especially  in  mat- 
ters relating  to  land,  were  not  Roman.  At  last,  under  Lewis 
the  Fourteenth,  a  codifying  process  set  in.  Comprehensive 
Ordinances,  each  covering  a  branch  of  law,  began  to  be 
issued  from  1667  down  to  1747.  These  operated  through- 
out France,  and,  being  founded  on  Roman  principles,  further 
advanced  the  work,  already  prosecuted  by  the  jurists,  of 
Romanizing  the  customary  law  of  Northern  France.  That 
of  Southern  France  (the  pays  du  droit  ecrit)  had  been  more 
specifically  Roman,  for  the  South  had  been  less  affected  by 
Frankish  conquest  and  settlement.  The  five  Codes  promul- 
gated by  Napoleon  followed  in  1803  to  1810.1  Others 
reproducing  them  with  more  or  less  divergence  have  been 
enacted  in  other  Romance  countries. 

In  Prussia,  Frederick  the  Second  directed  .the  preparation 
of  a  Code  which  became  law  after  his  death,  in  1794.  From 
1848  onwards  parts  of  the  law  of  Germany  (which  differed 
in  different  parts  of  the  country)  began  to  be  codified,  being 
at  first  enacted  by  the  several  States,  each  for  itself,  latterly 
by  the  legislature  of  the  new  Empire.  Finally,  after  twenty- 
two  years  of  labour,  a  new  Code  for  the  whole  German  Em- 
pire was  settled,  was  passed  by  the  Chambers,  and  came  into> 
'  force  on  the  first  of  January,  1900.  It  does  not,  however, 
altogether  supersede  pre-existing  local  law.  This  Code,  far 
from  being  pure  Roman  law,  embodies*  many  rules  due  to 
mediaeval  custom  (especially  custom  relating  to  land-rights) 
modernized  to  suit  modern  conditions,  and  also  a  great  deal 
of  post-mediaeval  legislation.2  Some  German  jurists  com- 

1  Among  the  States  in  which  the  French  Code  has  been  taken  as  a 
model  are  Belgium,  Italy,  Spain,  Portugal,  Mexico,  and  Chili.  See  an 
article  by  Mr.  E.  Schuster  in  the  Law  Quarterly  Review  for  January, 
1896. 

1  An  interesting  sketch  of  the  "  reception "  of  Roman  law  in  Ger- 
many (by  Dr.  Erwin  Griiher)  may  be  found  in  the  Introduction  to  Mr. 
Ledlie's  translation  of  Sohm's  Insiitutionen  (1st  edition). 


18.     BRYCE:    THE   EXTENSION   OF   LAW    593 

plain  that  it  is  too  Teutonic ;  others  that  it  is  not  Teutonic 
enough.  One  may  perhaps  conclude  from  these  opposite 
criticisms  that  the  codifiers  have  made  a  judiciously  impar- 
tial use  of  both  Germanic  and  Roman  materials. 

Speaking  broadly,  it  may  be  said  that  the  groundwork  of 
both  the  French  and  the  German  Codes  —  that  is  to  say 
their  main  lines  and  their  fundamental  legal  conceptions  — 
is  Roman.  Just  as  the  character  and  genius  of  a  language 
are  determined  by  its  grammar,  irrespective  of  the  number 
of  foreign  words  it  may  have  picked  Up,  so  Roman  law  re- 
mains Roman  despite  the  accretion  of  the  new  elements  which 
the  needs  of  modern  civilization  have  required  it  to  accept. 

The  fifth  stage  is  the  transplantation  of  Roman  law  in  its 
•modern  forms  to  new  countries.  The  Spaniards  and  Portu- 
guese, the  French,  the  Dutch,  and  the  Germans  have  carried 
their  respective  systems  of  law  with  them  into  the  territories 
they  have  conquered  and  the  colonies  they  have  founded; 
and  the  law  has  often  remained  unchanged  even  when  the 
territory  or  the  colony  has  passed  to  new  rulers.  For  law  is 
a  tenacious  plant,  even  harder  to  extirpate  than  is  language; 
and  new  rulers  have  generally  had  the  sense  to  perceive  that 
they  had  less  to  gain  by  substituting  their  own  law  for  that 
which  they  found  than  they  had  to  lose  by  irritating  their 
new  subjects.  Thus,  Roman-French  law  survives  in  Quebec 
(except  in  commercial  matters)  and  in  Louisiana,  Roman- 
Dutch  law  in  Guiana  and  South  Africa. 

The  cases  of  Poland,  Russia  and  the  Scandinavian  king- 
doms are  due  to  a  process  different  from  any  of  those  hith- 
erto described.  The  law  of  Russia  was  originally  Slavonic 
custom,  influenced  to  some  extent  by  the  law  of  the  Eastern 
Roman  Empire,  whence  Russia  took  her  Christianity  and 
her  earliest  literary  impulse.  In  its  present  shape,  while  re- 
taining in  many  points  a  genuinely  Slavonic  character,  and 
of  course  far  less  distinctly  Roman  than  is  the  law  of  France,' 
it  has  drawn  so  much,  especially  as  regards  the  principles 
of  property  rights  and  contracts,  from  the  Code  Napoleon 
and  to  a  less  degree  from  Germany,  that  it  may  be  described 
as  being  Roman  "at  the  second  remove,"  and  reckoned  as 
an  outlying  and  half-assimilated  province,  so  to  speak,  of 


594        IV.     THE   NINETEENTH   CENTURY 

the  legal  realm  of  Rome.  Poland,  lying  nearer  Germany, 
and  being,  as  a  Catholic  country,  influenced  by  the  Canon 
Law,  as  well  as  by  German  teaching  and  German  books, 
adopted  rather  more  of  Roman  doctrine  than  Russia  did.1 
Her  students  learnt  Roman  law  first  at  Italian,  afterwards 
at  German  Universities,  and  when  they  became  judges, 
naturally  applied  its  principles.  The  Scandinavian  coun- 
tries set  out  with  a  law  purely  Teutonic,  and  it  is  chiefly 
through  the  German  Universities  and  the  influence  of  Ger- 
man juridical  literature  that  Roman  principles  have  found 
their  way  in  and  coloured  the  old  customs.  Servia,  Bulgaria 
and  Rumania,  on  the  other  hand,  were  influenced  during  the 
Middle  Ages  by  the  law  of  the  Eastern  Empire,  whence  they 
drew  their  religion  and  their  culture.  Thus  their  mo'dern 
law,  whose  character  is  due  partly  to  these  Byzantine  influ- 
ences —  of  course  largely  affected  by  Slavonic  custom  — • 
and  partly  to  what  they  have  learnt  from  France  and  Aus- 
tria, may  also  be  referred  to  the  Roman  type. 

V.     The  Diffusion  of  English  Law 

England,  like  Rome,  has  spread  her  law  over  a  large  part 
of  the  globe.  But  the  process  has  been  in  her  case  not  only 
far  shorter  but  far  simpler.  The  work  has  been  (except  as 
respects  Ireland)  effected  within  the  last  three  centuries; 
and  it  has  been  effected  (except  as  regards  Ireland  and 
India)  not  by  conquest  but  by  peaceful  settlement. 
This  is  one.  of  the  two  points  in  which  England  stands 
contrasted  with  Rome.  The  other  is  that  her  own  law 
has  not  been  affected  by  the  process.  It  has  changed 
within  the  seven  centuries  that  lie  between  King  Henry  the 
Second  and  the  present  day,  almost  if  not  quite  as  much  as 
the  law  of  Rome  changed  in  the  seven  centuries  between  the 
enactment  of  the  Twelve  Tables  and  the  reigri  of  Caracalla. 
But  these  changes  have  not  been  due,  as  those  I  have  de- 

1  In  Lithuania  the 'rule  was  that  where  no  express  provision  could 
be  found  governing  a  case,  recourse  should  he  had  to  "the  Christian 
laws."  Speaking  generally,  one  may  say  that  it  was  hy  and  with 
Christianity  that  Roman  law  made  its  way  in  the  countries"  to  the  east 
of  Germany  and  to  the  north  of  the  Eastern  Empire. 


18.     BRYCE:    THE   EXTENSION   OF   LAW    595 

scribed  in  the  Roman  Empire  were  largely  due,  to  the  exten- 
sion of  the  law  of  England  to  new  subjects.  They  would 
apparently  have  come  to  pass  in  the  same  way  and  to  the 
same  extent  had  the  English  race  remained  confined  to  its 
own  island. 

England  has  extended  her  law  over  two  classes  of  terri- 
tories. 

The  first  includes  those  which  have  been  peacefully  settled 
by  Englishmen  —  North  America  (except  Lower  Canada), 
Australia,  New  Zealand,  Fiji,  the  Falkland  Isles.  All  of 
these,  except  the  United  States,  have  remained  politically 
connected  with  the  British  Crown. 

The  second  includes  conquered  territories.  In  some  of 
these,  such  as  Wales,  Ireland,  Gibraltar,  the  Canadian  prov- 
inces of  Ontario  and  Nova  Scotia,  and  several  of  the  West 
India  Islands,  English  law  has  been  established  as  the  only 
system,  applicable  to  all  subjects.1  In  others,  such  as  Malta, 
Cyprus,  Singapore,  and  India,  English  law  is  applied  to 
Englishmen  and  native  law  to  natives,  the  two  systems  being 
worked  concurrently.  Among  these  cases,  that  which  pre- 
sents problems  of  most  interest  and  difficulty  is  India.  But 
before  we  consider  India,  a  few  words  may  be  given  to  the 
territories  of  the  former  class.  They  are  now  all  of  them, 
except  the  West  Indies,  Fiji  and  the  Falkland  Isles,  self- 
governing,  and  therefore  capable  of  altering  their  own  law. 
This  they  do  pretty  freely.  The  United  States  have  now 
forty-nine  legislatures  at  work,  viz.  Congress,  forty-five 
States,  and  three  organized  Territories.  They  have  turned 
out  an  immense  mass  of  law  since  their  separation  from 
England.  But  immense  as  it  is,  and  bold  as  are  some  of  the 
experiments  which  may  be  found  in  it,  the  law  of  the  United 
States  remains  (except  of  course  in  Louisiana)  substantially 
English  law.  An  English  barrister  would  find  himself  quite 
at  home  in  any  Federal  or  State  Court,  and  would  have  noth- 
ing new  to  master,  except  a  few  technicalities  of  procedure 

*  It  has  undergone  little  or  no  change  in  the  process.  The  Celtic  cus- 
toms disappeared  in  Wales;  the  Brehon  law,  though  it  was  contained  in 
many  written  texts  and  was  followed  over  the  larger  part  of  Ireland 
till  the  days  of  the  Tudors,  has  left  practically  no  trace  in  the  existing 
law  of  Ireland,  which  is,  except  as  respects  land,  some  penai  matters, 
and  marriage,  virtually  identical  with  the  law  of  England. 


596        IV.     THE   NINETEENTH   CENTURY 

and  the  provisions  of  any  statutes  which  might  affect  the 
points  he  had  to  argue.  And  the  patriarch  of  American 
teachers  of  law  (Professor  C.  C.  Langdell  of  the  Law  School 
in  Harvard  University),  consistently  declining  to  encumber 
his  expositions  with  references  to  Federal  or  State  Statutes, 
continues  to  discourse  on  the  Common  Law  of  America, 
which  differs  little  from  the  Common  Law  of  England.  The 
old  Common  Law  which  the  settlers  carried  with  them  in 
the  seventeenth  century  has  of  course  been  developed  or 
altered  by  the  decisions  of  American  Courts.  These,  how- 
ever, have  not  affected  its  thoroughly  English  character. 
Indeed,  the  differences  between  the  doctrines  enounced  by  the 
Courts  of  different  States  are  sometimes  just  as  great  as  the 
differences  between  the  views  of  the  Courts  of  Massachusetts 
or  New  Jersey  and  those  of  Courts  in  England. 

The  same  is  true  of  the  self-governing  British  colonies. 
In  them  also  legislation  has  introduced  deviations  from  the 
law  of  the  mother  country.  More  than  forty  years  ago  New 
Zealand,  for  instance,  repealed  the  Statute  of  Uses,  which 
is  the  corner-stone  of  English  conveyancing;  and  the  Aus- 
tralian legislatures  have  altered  (among  other'  things)  the 
English  marriage  law.  But  even  if  the  changes  made  by 
statute  had  been  far  greater  than  they  have  been,  and  even 
if  there  were  not,  as  there  still  is,  a  right  of  appeal  from  the 
highest  Courts  of  these  colonies  to  the  Crown  in  Council, 
their  law  should  still  remain,  in  all  its  essential  features,  a 
genuine  and  equally  legitimate  offspring  of  the  ancient  Com- 
mon Law. 

We  come  now  to  the  territories  conquered  by  England, 
and  to  which  she  has  given  her  law  whether  in  whole  or  in 
part.  Among  these  it  is  only  of  India  that  I  shall  speak, 
as  India  presents  the  phenomena  of  contact  between  the  law 
of  the  conqueror  and  that  of  the  conquered  on  the  largest 
scale  and  in  the  most  instructive  form.  What  the  English 
have  done  in  India  is  being  done  or  will  have  to  be  done, 
though  nowhere  else  on  so  vast  a  scale,  by  the  other  great 
nations  which  have  undertaken  the  task  of  ruling  and  of 
bestowing  what  are  called  the  blessings  of  civilization  upon 
the  backward  races.  Russia,  France,  Germany,  and  now  the 


18.     BRYCE:    THE   EXTENSION   OF   LAW    597 

United  States  also,  all  see  this  task  before  them.  To  them 
therefore,  as  well  as  to  England,  the  experience  of  the  Brit- 
ish Government  in  India  may  be  profitable. 

VI.     English  Law  in  India 

When  the  English  began  to  conquer  India  they  found  two 
great  systems  of  customary  law  in  existence  there,  the  Musul- 
man  and  the  Hindu.  There  were  other  minor  bodies  of  cus- 
tom, prevailing  among  particular  sects,  but  these  may  for 
the  present  be  disregarded.  Musulman  law  regulated  the  life 
and  relations  of  all  Musulmans;  and  parts  of  it,  especially 
its  penal  provisions,  were  also  applied  by  the  Musulman 
potentates  to  their  subjects  generally,  Hindus  included.  The 
Musulman  law  had  been  most  fully  worked  out  in  the  depart- 
ments of  family  relations  and  inheritance,  in  some  few 
branches  of  the  law  of  contract,  such  as  money  loans  and 
mortgages  and  matters  relating  to  sale,  and  in  the  doctrine 
of  charitable  or  pious  foundations  called  Wakuf. 

In  the  Hindu  principalities,  Hindu  law  was  dominant,  and 
even  where  the  sovereign  was  a  Musulman,  the  Hindu  law  of 
family  relations  and  of  inheritance  was  recognized  as  that 
by  which  Hindus  lived.  There  were  also  of  course  many  land 
customs,  varying  from  district  to  district,  which  both 
Hindus  and  Musulmans  observed,  as  they  were  not  in  general 
directly  connected  with  religion.  In  some  regions,  such  as 
Oudh  and  what  are  now  the  North-West  provinces,  these 
customs  had  been  much  affected  by  the  land  revenue  system 
of  the  Mogul  Emperors.  It  need  hardly  be  said  that  where 
Courts  of  law  existed,  they  administered  an  exceedingly 
rough  and  ready  kind  of  justice,  or  perhaps  injustice,  for 
bribery  and  favouritism  were  everywhere  rampant.  . 

There  were  also  mercantile  customs,  which  were  generally 
understood  and  observed  by  traders,  and  which,  with  certain 
specially  Musulman  rules  recognized  in  Musulman  States, 
made  up  what  there  was  of  a  law  of  contracts. 

Thus  one  may  say  that  the  law  (other  than  purely  re- 
ligious law)  which  the  English  administrators  in  the  days 
of  Clive  and  Warren  Hastings  found  consisted  of  - 


598        IV.     THE   NINETEENTH   CENTURY 

First,  a  large  and  elaborate  system  of  Inheritance  and 
Family  Law,  the  Musulman  pretty  uniform  throughout 
India,  though  in  some  regions  modified  by  Hindu  custom, 
the  Hindu  less  uniform.  Each  was  utterly  unlike  English 
law  and  incapable  of  being  fused  with  it.  Each  was  closely 
bound  up  with  the  religion  and  social  habits  of  the  people. 
Each  was  contained  in  treatises  of  more  or  less  antiquity 
and  authority,  some  of  the  Hindu  treatises  very  ancient  and 
credited  with  almost  divine  sanction,  the  Musulman  treatises 
of  course  posterior  to  the  Koran,  and  consisting  of  com- 
mentaries upon  that  Book  and  upon  the  traditions  that  had 
grown  up  round  it. 

Secondly,  a  large  mass  of  customs  relating  to  the  occupa- 
tion and  use  of  land  and  of  various  rights  connected  with 
tillage  and  pasturage,  including  water-rights,  rights  of  soil- 
accretion  on  the  banks  of  rivers,  and  forest-rights.  The 
agricultural  system  and  the  revenue  system  of  the  country 
rested  upon  these  land  customs,  which  were  of  course  mostly 
unwritten  and  which  varied  widely  in  different  districts. 

Thirdly,  a  body  of  customs,  according  to  our  ideas  com- 
paratively scanty  and  undeveloped,  but  still  important,  re- 
lating to  the  transfer  and  pledging  of  property,  and  to  con- 
tracts, especially  commercial  contracts. 

Fourthly,  certain  penal  rules  drawn  from  Musulman  law 
and  more  or  less  enforced  by  Musulman  princes. 

Thus  there  were  considerable  branches  of  law  practically 
non-existent.  There  was  hardly  any  law  of  civil  and  crim- 
inal procedure,  because  the  methods  of  justice  were  primitive, 
and  would  have  been  cheap,  but  for  the  prevalence  of  corrup- 
tion among  judges  as  well  as  witnesses.  There  was  very 
little  of  the  law  of  Torts  or  Civil  Wrongs,  and  in  the  law  of 
property  of  contracts  and  of  crimes,  some  departments  were 
wanting  or  in  a  rudimentary  condition.  Of  a  law  relating 
to  public  and  constitutional  rights  there  could  of  course  be 
no  question,  since  no  such  rights  existed. 

In  this  state  of  facts  the  British  officials  took  the  line 
which  practical  men,  having  their  hands  full  of  other  work, 
would  naturally  take,  viz.  the  line  of  least  resistance.  They 
accepted  and  carried  on  what  they  found.  Where  there  was 


IS.     BRYCE:    THE  EXTENSION  OF  LAW      599 

a  native  law,  they  applied  it,  Musulman  law  to  Musulmans, 
Hindu  law  to  Hindus,  and  in  the  few  places  where  they  were 
to  be  found,  Parsi  law  to  Parsis,  Jain  law  to  Jains.  Thus 
men  of  every  creed  —  for  it  was  creed,  not  race  nor  allegiance 
by  which  men  were  divided  and  classified  in  India  —  lived 
each  according  to  his  own  law,  as  Burgundians  and  Franks 
and  Romanized  Gauls  had  done  in  the  sixth  century  in  Eu- 
rope. The  social  fabric  was  not  disturbed,  for  the  land  cus- 
toms and  the  rules  of  inheritance  were  respected;  and  »of 
course  the  minor  officers,  with  whom  chiefly  the  peasantry 
came  in  contact,  continued  to  be  natives.  Thus  the  villager 
scarcely  felt  that  he  was  passing  under  the  dominion  of  an 
alien  power,  professing  an  alien  faith.  His  life  flowed 
on  in  the  same  equable  course  beside  the  little  white  mosque, 
or  at  the  edge  of  the  sacred  grove.  A  transfer  of  power 
from  a  Hindu  to  a  Musulman  sovereign  would  have  made 
more  difference  to  him  than  did  the  establishment  of  British 
rule;  and  life  was  more  placid  than  it  would  have  been 
under  either  a  rajah  or  a  sultan,  for  the  marauding  bands 
which  had  been  the  peasants'  terror  were  soon  checked  by 
European  officers. 

So  things  remained  for  more  than  a  generation.  So 
indeed  things  remain  still  as  respects  those  parts  of  law 
which  are  inwoven  with  religion,  marriage,  adoption  (among 
Hindus)  and  other  family  relations,  and  with  the  succession 
to  property.  In  all  these  matters  native  law  continues  to 
be  administered  by  the  Courts  the  English  have  set  up ;  and 
when  cases  are  appealed  from  the  highest  of  those  Courts  to 
the  Privy  Council  in  England,  that  respectable  body  deter- 
mines the  true  construction  to  be  put  on  the  Koran  and  the 
Islamic  Traditions,  or  on  passages  from  the  mythical  Manu, 
in  the  same  business-like  way  as  it  would  the  meaning  of 
an  Australian  statute.1  Except  in  some  few  points  to  be 
presently  noted,  the  Sacred  Law  of  Islam  and  that  of  Bran- 
dt is  related  that  a  hill  tribe  of  Kols,  in  Central  India,  had  a  dis- 
pute with  the  Government  of  India  over  some  question  of  forest-rights. 
The  case  having  gone  in  their  favour,  the  Government  appealed  to  the 
Judicial  Committee.  Shortly  afterwards  a  passing  traveller  found  the 
elders  of  the  tribe  assembled  at  the  sacrifice  of  a  kid.  He  inquired  what 
deity  was  being  propitiated,  and  was  told  that  it  was  a  deity  powerful 
but  remote,  whose  name  was  Privy  Council. 


600        IV.     THE   NINETEENTH    CENTURY 

manism  remained  unpolluted  by  European  ideas.  Yet  they 
have  not  stood  unchanged,  for  the  effect  of  the  more  careful 
and  thorough  examination  which  the  contents  of  these  two 
systems  have  received  from  advocates,  judges,  and  text- 
writers,  both  native  and  English,  imbued  with  the  scientific 
spirit  of  Europe,  has  been  to  clarify  and  define  them,  and 
to  develop  out  of  the  half-fluid  material  more  positive  and 
rigid  doctrines  than  had  been  known  before.  Something  like 
ihts  may  probably  have  been  done  by  the  Romans  for  the 
local  or  tribal  law  of  their  provinces. 

In  those  departments  in  which  the  pre-existing  customs 
were  not  sufficient  to  constitute  a  body  of  law  large  enough 
and  precise  enough  for  a  civilized  Court  to  work  upon,  the 
English  found  themselves  obliged  to  supply  the  void.  This 
was  done  in  two  ways.  Sometimes  the  Courts  boldly  applied 
English  law.  Sometimes  they  supplemented  native  custom 
by  common  sense,  i.  e.  by  their  own  ideas  of  what  was  just 
and  fair.  The  phrase  "  equity  and  good  conscience  "  was 
used  to  embody  the  principles  by  which  judges  were  to  be 
guided  when  positive  rules,  statutory  or  customary,  were  not 
forthcoming.  To  a  magistrate  who  knew  no  law  at  all,  these 
words  would  mean  that  he  might  follow  his  own  notions  of 
"  natural  justice,"  and  he  would  probably  give  more  satis- 
faction to  suitors  than  would  his  more  learned  brother,  try- 
ing to  apply  confused  recollections  of  Blackstone  or  Chitty. 
In  commercial  matters  common  sense  would  be  aided  by  the 
usage  of  traders.  In  cases  of  Tort  native  custom  was  not 
often  available,  but  as  the  magistrate  who  dealt  out  sub- 
stantial justice  would  give  what  the  people  had  rarely  ob- 
tained from  the  native  courts,  they  had  no  reason  to  com- 
plain of  the  change.  As  to  rules  of  evidence,  the  young 
Anglo-Indian  civilian  would,  if  he  were  wise,  forget  all  the 
English  technicalities  he  might  have  learnt,  and  make  the 
best  use  he  could  of  his  mother-wit.1 

For  the  first  sixty  years  or  more  of  British  rule  there 
was  accordingly  little  or  no  attempt  to  Anglify  the  law  of 

1  For  the  facts  given  in  the  following  pages  I  am  much  indented  to 
the  singularly  lucid  and  useful  treatise  of  Sir  C.  P.  Ilhert  (formerly 
T,earal  Member  of  the  Viceroy's  Council)  entitled  The  Government  of 


18.     BRYCE:    THE   EXTENSION   OF   LAW    601 

India,  or  indeed  to  give  it  any  regular  and  systematic  form. 
Such  alterations  as  it  underwent  were  the  natural  result  of 
its  being  dispensed  by  Europeans.  But  to  this  general  rule 
there  were  two  exceptions,  the  law  of  Procedure  and  the  law 
of  Crimes.  Courts  had  been  established  in  the  Presidency 
towns  even  before  the  era  of  conquest  began.  As  their  busi- 
ness increased  and  subordinate  Courts  were  placed  in  the 
chief  towns  of  the  annexed  provinces,  the  need  for  some 
regular  procedure  was  felt.  An  Act  of  the  British  Parlia- 
ment of  A.  D.  1781  empowered  the  Indian  Government  to 
make  regulations  for  the  conduct  of  the  provincial  Courts, 
as  the  Court  at  Fort  William  (Calcutta)  had  already  been 
authorized  to  do  for  itself  by  an  Act  of  1773.  Thus  a 
regular  system  of  procedure,  modelled  after  that  of  Eng- 
land, was  established ;  and  the  Act  of  1781  provided  that  the 
rules  and  forms  for  the  execution  of  process  were  to  be 
accommodated  to  the  religion  and  manners  of  the  natives. 

As  respects  penal  law,  the  English  began  by  adopting 
that  which  the  Musulman  potentates  had  been  accustomed 
to  apply.  But  they  soon  found  that  many  of  its  provisions 
were  such  as  a  civilized  and  nominally  Christian  government 
could  not  enforce.  Mutilation  as  a  punishment  for  theft, 
for  instance,  and  stoning  for  sexual  offences,  were  penalties 
not  suited  to  European  notions ;  and  still  less  could  the  prin- 
ciple be  admitted  that  the  evidence  of  a  non-Musulman  is 
not  receivable  against  one  of  the  Faithful.  Accordingly  a 
great  variety  of  regulations  were  passed  amending  the 
Musulman  law  of  crimes  from  an  English  point  of  view.  In 
Calcutta  the  Supreme  Court  did  not  hesitate  to  apply  Eng- 
lish penal  law  to  natives ;  and  applied  it  to  some  purpose  at 
a  famous  crisis  in  the  fortunes  of  Warren  Hastings  when 
(in  1775)  it  hanged  Nuncomar  for  forgery  under  an  Eng- 
lish statute  of  1728,  which  in  the  opinion  of  many  high 
authorities  of  a  later  time  had  never  come  into  force  at  all 
in  India.  It  was  inevitable  that  the  English  should  take 
criminal  jurisdiction  into  their  own  hands  —  the  Romans 
had  done  the  same  in  their  provinces  —  and  inevitable  also 
that  they  should  alter  the  penal  law  in  conformity  with  their 
own  ideas.  But  they  did  so  in  a  very  haphazard  fashion. 


602   IV.  THE  NINETEENTH  CENTURY 

The  criminal  law  became  a  patchwork  of  enactments  so  con- 
fused that  it  was  the  first  subject  which  invited  codification 
in  that  second  epoch  of  English  rule  which  we  are  now 
approaching. 

Before  entering  on  this  remarkable  epoch,  one  must  re- 
member that  the  English  in  India,  still  a  very  small  though 
important  class,  were  governed  entirely  by  English  law.  So 
far  as  common  law  and  equity  went,  this  law  was  exactly  the 
same  as  the  contemporaneous  law  of  England.  But  it  was 
complicated  by  the  fact  that  a  number  of  Regulations,  as 
they  were  called,  had  been  enacted  for  India  by  the  local 
government,  that  many  British  statutes  were  not  intended 
to  apply  and  probably  did  not  apply  to  India  (though 
whether  they  did  or  not  was  sometimes  doubtful),  and  that 
a  certain  number  of  statutes  had  been  enacted  by  Parliament 
expressly  for  India.  Thus  though  the  law  under  which  the 
English  lived  had  not  been  perceptibly  affected  by  Indian 
customs,  it  was  very  confused  and  troublesome  to  work. 
That  the  learning  of  the  judges  sent  from  home  to  sit  in 
the  Indian  Courts  was  seldom  equal  to  that  of  the  judges  in 
England  was  not  necessarily  a  disadvantage,  for  in  travers- 
ing the  jungle  of  Indian  law  the  burden  of  English  case  lore 
would  have  too  much  impeded  the  march  of  justice. 

The  first  period  of  English  rule,  the  period  of  rapid  ter- 
ritorial extension  and  of  improvised  government,  may  be 
said  to  have  ended  with  the  third  Marath%  war  of  1817-8. 
The  rule  of  Lord  Amherst  and  Lord  William  Bentinck 
(1823-35)  was  a  comparatively  tranquil  period,  when  in- 
ternal reforms  had  their  chance,  as  they  had  in  the  Roman 
Empire  under  Hadrian  and  Antoninus  Pius.  This  was  also 
the  period  when  a  spirit  of  legal  reform  was  on  foot  in  Eng- 
land. It  was  the  time  when  the  ideas  of  Bentham  had  begun 
to  bear  fruit,  and  when  the  work  begun  by  Romilly  was 
being  carried  on  by  Broughnm  and  others.  Both  the  law 
applied  to  Englishmen,  and  such  parts  of  native  law  as  had 
been  cut  across,  filled  up,  and  half  re-shaped  by  English 
legal  notions  and  rules,  called  loudly  for  simplification  and 
reconstruction. 

The  era  of  reconstruction  opened  with  the  enactment,  in 


18.     BRYCE:    THE   EXTENSION   OF   LAW     603 

the  India  Charter  Act  of  1833,  of  a  clause  declaring  that 
a  general  judicial  system  and  a  general  body  of  law  ought 
to  be  established  in  India  applicable  to  all  classes,  Euro- 
peans as  well  as  natives,  and  that  all  laws  and  customs  hav- 
ing legal  force  ought  to  be  ascertained,  consolidated,  and 
amended.  The  Act  then  went  on  to  provide  for  the  appoint- 
ment of  a  body  of  experts  to  be  called  the  Indian  Law  Com- 
mission, which  was  to  inquire  into  and  report  upon  the 
Courts,  the  procedure  and  the  law  then  existing  in  India.  Of 
this  commission  Macaulay,  appointed  in  1833  legal  member 
of  the  Governor-General's  Council,  was  the  moving  spirit; 
and  with  it  the  work  of  codification  began.  It  prepared  a 
Penal  Code,  which  however  was  not  passed  into  law  until 
1860,  for  its  activity  declined  after  Macaulay 's  return  to 
England  and  strong  opposition  was  offered  to  his  draft  by 
many  of  the  Indian  judges.  A  second  Commission  was  ap- 
pointed under  an  Act  of  1853,  and  sat  in  England.  It 
secured  the  enactment  of  the  Penal  Code,  and  of  Codes  of 
Civil  and  of  Criminal  Procedure.  A  third  Commission  was 
crated  in  1861,  and  drafted  other  measures.  The  Govern- 
ment of  India  demurred  to  some  of  the  proposed  changes 
and  evidently  thought  that  legislation  was  being  pressed  on 
rather  too  fast.  The  Commission,  displeased  at  this  resist- 
ance, resigned  in  1870 ;  and  since  then  the  work  of  preparing 
as  well  as  of  carrying  through  codifying  Acts  has  mostly 
been  done  in  India.  The  net  result  of  the  sixty-six  years 
that  have  passed  since  Macaulay  set  to  work  in  1834  is  that 
Acts  codifying  and  amending  the  law,  and  declaring  it  ap- 
plicable to  both  Europeans  and  natives,  have  been  passed 
on  the  topics  following:  — 

Crimes  (1860). 

Criminal  Procedure   (1861,  1882,  and  1898). 

Civil  Procedure  (1859  and  1882). 

Evidence  (1872). 

Limitation  of  Actions  (1877). 

Specific  Relief  (1877). 

Probate  and  Administration   (1881). 

Contracts  (1872)  (but  only  the  general  rules  of  contract 
with  a  few  rules  on  particular  parts  of  the  subject). 


004:        IV.     THE    NINETEENTH    CENTURY 

Negotiable  Instruments  (1881)  (but  subject  to  native 
customs). 

Besides  these,  codifying  statutes  have  been  passed  which 
do  not  apply  (at  present)  to  all  India,  but  only  to  parts  of 
it,  or  to  specified  classes  of  the  population,  on  the  topics  fol- 
lowing :  — 

Trusts  (1882). 

Transfer  of  Property  (1882). 

Succession  (1865). 

Easements   (1882). 

Guardians  and  Wards  (1890). 

These  statutes  cover  a  large  part  of  the  whole  field  of  law, 
so  that  the  only  important  departments  not  yet  dealt  with 
are  those  of  Torts  or  Civil  Wrongs  (on  which  a  measure  not 
yet  enacted  was  prepared  some  years  ago)  ;  certain  branches 
of  contract  law,  which  it  is  not  urgent  to  systematize  because 
they  give  rise  to  lawsuits  only  in  the  large  cities,  where  the 
Courts  are  quite  able  to  dispose  of  them  in  a  satisfactory 
way ;  Family  Law,  which  it  would  be  unsafe  to  meddle  with, 
because  the  domestic  customs  of  Hindus,  Musulmans,  and 
Europeans  are  entirely  different ;  and  Inheritance,  the 
greater  part  of  which  is,  for  the  same  reason,  better  left  to 
native  custom.  Some  points  have,  however,  been  covered  by 
the  Succession  Act  already  mentioned.  Thus  the  Govern- 
ment of  India  appear  to  think  that  they  have  for  the  present 
gone  as  far  as  they  prudently  can  in  the  way  of  enacting 
uniform  general  laws  for  all  classes  of  persons.  Further 
action  might  displease  either  the  Hindus  or  the  Musulmans, 
possibly  both:  and  though  there  would  be  advantages  in 
bringing  the  law  of  both  these  sections  of  the  population 
into  a  more  clear  and  harmonious  shape,  it  would  in  any 
case  be  impossible  to  frame  rules  which  would  suit  both  of 
them,  and  would  also  suit  the  Europeans.  Here  Religion 
steps  in,  a  force  more  formidable  in  rousing  opposition  or 
disaffection  than  any  which  the  Romans  had  to  fear. 

In  such  parts  of  the  law  as  are  not  covered  by  these 
enumerated  Acts,  Englishmen,  Hindus  and  Musulmans  con- 
tinue to  live  under  their  respective  laws.  So  do  Parsis,  Sikhs, 
Buddhists  (most  numerous  in  Burma),  and  Jains,  save  that 


18.     BRYCE:    THE    EXTENSION   OF   LAW    605 

where  there  is  really  no  native  law  or  custom  that  can  be 
shown  to  exist,  the  judge  will  naturally  apply  the  principles 
of  English  law,  handling  them,  if  he  knows  how,  in  an  un- 
technical  way.  Thus  beside  the  new  stream  of  united  law 
which  has  its  source  in  the  codifying  Acts,  the  Various  older 
streams  of  law,  each  representing  a  religion,  flow  peacefully 
on. 

The  question  which  follows  —  What  has  been  the  action 
on  the  other  of  each  of  these  elements?  resolves  itself  into 
three  questions :  — 

How  far  has  English  Law  affected  the  Native  Law  which 
remains  in  force? 

How  far  has  Native  Law  affected  the  English  Law  which 
is  in  force? 

How  have  the  codifying  Acts  been  framed  —  i.  e.  are  they 
a  compromise  between  the  English  and  the  native  element, 
or  has  either  predominated  and  given  its  colour  to  the  whole 
mass  ? 

The  answer  to  the  first  question  is  that  English  influence 
has  told  but  slightly  upon  those  branches  of  native  law  which 
had  been  tolerably  complete  before  the  British  conquest,  and 
which  are  so  interwoven  with  religion  that  one  may  almost 
call  them  parts  of  religion.  The  Hindu  and  Musulman  cus- 
toms which  regulate  the  family  relations  and  rights  of  suc- 
cession have  been  precisely  defined,  especially  those  of  the 
Hindus,  which  were  more  fluid  than  the  Muslim  customs,  and 
were  much  less  uniform  over  the  whole  country.  Trusts 
have  been  formally  legalized,  and  their  obligation  rendered 
stronger.  Adoption  has  been  regularized  and  stiffened,  for 
its  effects  had  been  uncertain  in  their  legal  operation. 
Where  several  doctrines  contended,  one  doctrine  has  been 
affirmed  by  the  English  Courts,  especially  by  the  Privy 
Council  as  ultimate  Court  of  Appeal,  and  the  others  set 
aside.  Moreover  the  Hindu  law  of  Wills  has  been  in  some 
points  supplemented  by  English  legislation,  and  certain  cus- 
toms repugnant  to  European  ideas,  such  as  \he  self-immola- 
tion of  the  widow  on  the  husband's  funeral  pyre,  have  been 
abolished.  And  in  those  parts  of  law  which,  though  regu- 
lated by  local  custom,  were  not  religious,  some  improvements 


•   606   IV.  THE  NINETEENTH  CENTURY 

have  been  affected.  The  rights  of  the  agricultural  tenant 
have  been  placed  on  a  more  secure  basis.  Forest-rights 
have  been  ascertained  and  defined,  partly  no  doubt  for  the 
sake  of  the  pecuniary  interests  which  the  Government  claims 
in  them,  and  which  the  peasantry  do  not  always  admit.  But 
no  attempt  has  been  made  to  Anglify  these  branches  of  law 
as  a  whole. 

On  the  other  hand,  the  law  applicable  to  Europeans  only 
has  been  scarcely  (if  at  all)  affected  by  native  law.  It 
remains  exactly  what  it  is  in  England,  except  in  so  far  as  the 
circumstances  of  India  have  called  for  special  statutes. 

The  third  question  is  as  to  the  contents  of  those  parts  of 
the  law  which  are  common  to  Europeans  and  Natives,  that 
is  to  say,  the  parts  dealt  by  the  codifying  Acts  already  enu- 
merated. Here  English  law  has  decisively  prevailed.  It  has 
prevailed  not  only  because  it  would  be  impossible  to  subject 
Europeans  to  rules  emanating  from  a  different  and  a  lower 
civilization,  but  also  because  native  custom  did  not  supply 
the  requisite  materials..  Englishmen  had  nothing  to  learn 
from  natives  as  respects  procedure  or  evidence.  The  native 
mercantile  customs  did  not  constitute  a  system  even  of  the 
general  principles  of  contract,  much  less  had  those  principles 
been  worked  out  in  their  details.  Accordingly  the  Contract 
Code  is  substantially  English,  and  where  it  differs  from  the 
result  of  English  cases,  the  differences  are  due,  not  to  the 
influence  of  native  ideas  or  native  usage,  but  to  the  views  of 
those  who  prepared  the  Code,  and  who,  thinking  the  English 
case-law  susceptible  of  improvement,  diverged  from  it  here 
and  there  just  as  they  might  have  diverged  »had  they  been 
preparing  a  Code  to  be  enacted  for  England.  There  are, 
however,  some  points  in  which  the  Penal  Code  shows  itself 
to  be  a  system  intended  for  India.  The  right  of  self-defence 
is  expressed  in  wider  terms  than  would  be  used  in  England, 
for  Macaulay  conceived  that  the  slackness  of  the  native  in 
protecting  himself  by  force  made  it  desirable  to  depart  a 
little  in  this  respect  from  the  English  rules.  Offences  such 
as  dacoity  (brigandage  by  robber  bands),  attempts  to  bribe 
judges  or  witnesses,  the  use  of  torture  by  policemen,  kidnap- 
ping, the  offering  of  insult  or  injury  to  sacred  places,  have 


18.     BRYCE:   THE   EXTENSION  OF   LAW   607 

been  dealt  with  more  fully  and  specifically  than  would  be 
necessary  in  a  Criminal  Code  for  England.  •  Adultery  has, 
conformably  to  the  ideas  of  the  East,  been  made  a  subject 
for  criminal  proceedings.  Nevertheless  these,  and  other 
similar,  deviations  from  English  rules  which  may  be  found  in 
the  Codes  enacted  for  Europeans  and  natives  alike,  do  not 
affect  the  general  proposition  that  the  Codes  are  substan- 
tially English.  The  conquerors  have  given  their  law  to  the 
conquered.  When  the  conquered  had  a  law  of  their  own 
which  this  legislation  has  effaced*  the  law  of  the  conquerors 
was  better.  Where  they  had  one  too  imperfect  to  suffice  for 
a  growing  civilization,  the  law  of  the  conquerors  was  in- 
evitable. 

VII.     The  Working  of  the  Indian  Codes 

Another  question  needs  to  be  answered.  It  has  a  twofold 
interest,  because  the  answer  not  only  affects  the  judgment 
to  be  passed  on  the  course  which  the  English  Government  in 
India  has  followed,  but  also  conveys  either  warning  or  en- 
couragement to  England  herself.  This  question  is  —  How 
have  these  Indian  Codes  worked  in  practice?  Have  they 
improved  the  administration  of  justice?  Have  they  given 
satisfaction  to  the  people?  Have  they  made  it  easier  to  know 
the  law,  to  apply  the  law,  to  amend  the  law  where  it  proves 
faulty? 

When  I  travelled  in  India  in  1888-9  I  obtained  opinions 
on  these  points  from  many  persons  competent  to  speak. 
There  was  a  good  deal  of  difference  of  view,  but  the  general 
result  seemed  to  be  as  follows.  I  take  the  four  most  impor- 
tant codifying  Acts,  as  to  which  it  was  most  easy  to  obtain 
profitable  criticisms. 

The  two  Procedure  Codes,  Civil  and  Criminal,  were  very 
generally  approved.  They  were  not  originally  creative  work, 
but  were  produced  by  consolidating  and  simplifying  a  mass 
of  existing  statutes  and  regulations,  which  had  become  un- 
wieldy and  confused.  Order  was  evoked  out  of  chaos,  a 
result  which,  though  beneficial  everywhere,  was  especially 
useful  in  the  minor  Courts,  whose  judges  had  less  learning 


608        IV.     THE   NINETEENTH   CENTURY 

and  experience  than  those  of  the  five  High  Courts  at  Cal- 
cutta, Madras,  Bombay,  Allahabad  and  Lahore. 

The  Penal  Code  was  universally  approved ;  and  it  deserves 
the  praise  bestowed  on  it,  for  it  is  one  of  the  noblest  monu- 
ments of  Macaulay's  genius.  To  appreciate  its  merits,  one 
must  remember  how  much,  when  prepared  in  1834,  it  was 
above  the  level  of  the  English  criminal  law  of  that  time.  The 
subject  is  eminently  fit  to  be  stated  in  a  series  of  positive 
propositions,  and  so  far  as  India  was  concerned,  it  had 
rested  mainly  upon  statute^  and  not  upon  common  law.  It 
has  been  dealt  with  in  a  scientific,  but  also  a  practical  com- 
mon-sense way:  and  the  result  is  a  body  of  rules  which  are 
comprehensible  and  concise.  To  have  these  on  their  desks 
has  been  an  immense  advantage  for  magistrates  in  the  coun- 
try districts,  many  of  whom  have  had  but  a  scanty  legal 
training.  It  has  also  been  claimed  for  this  Code  that  under 
it  crime  has  enormously  diminished:  but  how  much  of  the 
diminution  is  due  to  the  application  of  a  clear  arid  just  sys- 
tem of  rules,  how  much  to  the  more  efficient  police  adminis- 
tration, is  a  question  on  which  I  cannot  venture  to  pro- 
nounce.1 

No  similar  commendation  was  bestowed  on  the  Evidence 
Code.  Much  of  it  was  condemned  as  being  too  metaphysical, 
yet  deficient  in  subtlety.  Much  was  deemed  superfluous, 
and  because  superfluous,  possibly  perplexing.  Yet  even 
those  who  criticized  its  drafting  admitted  that  it  might  pos- 
sibly be  serviceable  to  untrained  magistrates  and  practi- 
tioners, and  I  have  myself  heard  some  of  these  untrained  men 
declare  that  they  did  find  it  helpful.  They  are  a  class 
relatively  larger  in  India  than  in  England. 

It  was  with  regard  to  the  merits  of  the  Contract  Code  that 
the  widest  difference  of  opinion  existed.  Any  one  who  reads 
it  can  see  that  its  workmanship  is  defective.  It  is  neither 
exact  nor  subtle,  and  its  language  is  often  far  from  lucid. 
Every  one  agreed  that  Sir  J.  F.  Stephen  (afterwards  Mr. 
Justice  Stephen),  who  put  it  into  the  shape  in  which  it  was 

lThe  merits  of  this  Code  are  discussed  in  an  interesting  and  suggest- 
ive manner  by  Mr.  H.  Speyer  in  an  article  entitled  Le  Droit  Ptnal 
Anqlo-indien,  which  appeared  in  the  Revue  de  1'Univertite'  de  BruxeUes 
in  April,  1900. 


18.     BRYCE:   THE   EXTENSION  OF   LAW   609 

passed  during  his  term  of  office  as  Legal  Member  of  Council, 
and  was  also  the  author  of  the  Evidence  Act,  was  a  man  of 
great  industry,  much  intellectual  force,  and  warm  zeal  for 
codification.  But  his  capacity  for  the  work  of  drafting 
was  deemed  not  equal  to  his  fondness  for  it.  He  did  not 
shine  either  in  fineness  of  discrimination  or  in  delicacy  of 
expression.  Indian  critics,  besides  noting  these  facts,  went 
on  to  observe  that  in  country  places  four-fifths  of  the  pro- 
visions of  the  Contract  Act  were  superfluous,  while  those 
which  were  operative  sometimes  unduly  fettered  the  discre- 
tion of  the  magistrate  or  judge,  entangling  him  in  tech- 
nicalities, and  preventing  him  from  meting  out  that  sub- 
stantial justice  which  is  what  the  rural  suitor  needs.  The 
judge  cannot  disregard  the  Act,  because  if  the  case  is  ap- 
pealed, the  Court  above,  which  has  only  the  notes  of  the 
evidence  before  it,  and  does  not  hear  the  witnesses,  is  bound 
to  enforce  the  provisions  of  the  law.  In  a  country  like 
India,  law  ought  not  to  be  too  rigid:  nor  ought  rights  to 
be  stiffened  up  so  strictly  as  they  are  by  this  Contract  Act- 
Creditors  had  already,  through  the  iron  regularity  with 
which  the  British  Courts  enforce  judgements  by  execution, 
obtained  far  more  power  over  debtors  than  they  possessed  in 
the  old  days,  and  more  than  the  benevolence  of  the  English 
administrator  approves.  The  Contract  Act  increases  this 
power  still  further.  This  particular  criticism  does  not  re- 
flect upon  the  technical  merits  of  the  Act  in  itself.  But  it 
does  suggest  reasons,  which  would  not  occur  to  a  European 
mind,  why  it  may  be  inexpedient  by  making  the  law  too 
precise  to  narrow  the  path  in  which  the  judge  has  to  walk. 
A  stringent  administration  of  the  letter  of  the  law  is  in 
semi-civilized  communities  no  unmixed  blessing. 

So  much  for  the  rural  districts.  In  the  Presidency  cities, 
on  the  other  hand,  the  Contract  Code  is  by  most  experts  pro- 
nounced to  be  unnecessary.  The  judges  and  the  bar  are  al- 
ready familiar  with  the  points  which  it  covers,  and  find  them- 
selves —  so  at  least  many  of  them  say  —  rather  embarrassed 
than  aided  by  it.  They  think  it  cramps  their  freedom  of 
handling  a  point  in  argument.  They  prefer  the  elasticity 
of  the  common  law.  And  in  point  of  fact,  they  seem  to  make 


610        IV.     THE    NINETEENTH    CENTURY 

no  great  use  of  the  Act,  but  to  go  on  just  as  their  predeces- 
sors did  before  it  was  passed. 

*  These  criticisms  may  need  to  be  discounted  a  little,  in  view 
of  the  profound  conservatism  of  the  legal  profession,  and  of 
the  dislike  of  men  trained  at  the  Temple  or  Lincoln's  Inn 
to  have  anything  laid  down  or  applied  on  the  Hooghly  which 
is  not  being  done  at  the  same  moment  on  the  Thames. 
And  a  counterpoise  to  them  may  be  found  in  the  educational 
value  which  is  attributed  to  the  Code  by  magistrates  and 
lawyers  who  have  not  acquired  a  mastery  of  contract  law 
through  systematic  instruction  or  through  experience  at 
home.  To  them  the  Contract  Act  is  a  manual  comparatively 
short  and  simple,  and  -also  authoritative ;  and  they  find  it 
useful  in  enabling  them  to  learn  their  business.  On  the  whole, 
therefore,  though  the  Code  does  not  deserve  the  credit  which 
has  sometimes  been  claimed  for  it,  one  may  hesitate  to  pro- 
nounce its  enactment  a  misfortune.  It  at  any  rate  provides 
a  basis  on  which  a  really  good  Code  of  contractual  law  may 
some  day  be  erected. 

Taking  the  work  of  Indian  codification  as  a  whole,  it  has 
certainly  benefited  the  country.  The  Penal  Code  and  the  two 
Codes  of  Procedure  represent  an  unmixed  gain.  The  same 
may  be  said  of  the  consolidation  of  the  statute  law,  for  which 
so  much  was  done  by  the  energy  and  skill  of  Mr.  Whitley 
Stokes.  And  the  other  codifying  acts  have  on  the  whole 
tended  both  to  improve  the  substance  of  the  law  and  to  make 
it  more  accessible.  Their  operation  has,  however,  been  less 
complete  than  most  people  in  Europe  realize,  for  while  many 
of  them  are  confined  to  certain  districts,  others  are  largely 
modified  by  the  local  customs  which  they  have  (as  expressed 
in  their  saving  clauses)  very  properly  respected.  If  we 
knew  more  about  the  provinces  of  the  Roman  Empire  we 
might  find  that  much  more  of  local  custom  subsisted  side 
by  side  with  the  apparently  universal  and  uniform  imperial 
law  than  we  should  gather  from  reading  the  compilations 
of  Justinian. 

It  has  already  been  observed  that  Indian  influences  have 
scarcely  at  all  affected  English  law  as  it  continues  to  be 
administered  to  Englishmen  in  India.  Still  less  have  they 


18.     BRYCE:   THE   EXTENSION  OF   LAW   611 

affected  the  law  of  England  at  home.  It  seems  to  have  been 
fancied  thirty  or  forty  years  ago,  when  law  reform  in  gen- 
eral and  codification. in  particular  occupied  the  public  mind 
more  than  they  do  now,  that  the  enactment  of  codes  of  law 
for  India,  and  the  success  which  was  sure  to  attend  them 
there,  must  react  upon  England  and  strengthen  the  demand 
for  the  reduction  of  her  law  into  a  concise  and  systematic 
form.  No  such  result  has  followed.  The  desire  for  codifica- 
tion in  England  has  not  been  perceptibly  strengthened  by 
the  experience  of  India.  Nor  can  it  indeed  be  said  that  the 
experience  of  India  has  taught  jurists  or  statesmen  much 
which  they  did  not  know  before.  That  a  good  code  is  a  very 
good  thing,  and  that  a  bad  code  is,  in  a  country  which  pos- 
sesses competent  judges,  worse  than  no  code  at  all  —  these 
are  propositions  which  needed  no  Indian  experience  to  verify 
them.  The  imperfect  success  of  the  Evidence  and  Contract 
Acts  has  done  little  more  than  add  another  illustration  to 
those  furnished  by  the  Civil  Code  of  California  and  the  Code 
of  Procedure  in  New  York  of  the  difficulty  which  attends 
these  undertakings.  Long  before  Indian  codification  was 
talked  of,  Savigny  had  shown  how  hard  it  is  to  express  the 
law  in  a  set  of  definite  propositions  without  reducing  its 
elasticity  and  impeding  its  further  development.  His  argu- 
ments scarcely  touch  penal  law,  still  less  the  law  of  procedure, 
for  these  are  not  topics  in  which  much  development  need  be 
looked  for.  But  the  future  career  of  the  Contract  Act  and 
of  the  projected  Code  of  Torts,  when  enacted,  may  supply 
some  useful  data  for  testing  the  soundness  of  his  doctrine. 
One  reason  why  these  Indian  experiments  have  so  little 
affected  English  opinion  may  be  found  in  the  fact  that  few 
Englishmen  have  either  known  or  cared  anything  about 
them.  The  British  public  has  not  realized  how  small  is  the 
number  of  persons  by  whom  questions  of  legal  policy  in 
India  have  during  the  last  seventy  years  been  determined. 
Two  or  three  officials  in  Downing  Street  and  as  many  in 
Calcutta  have  practically  controlled  the  course  of  events, 
with  little  interposition  from  outside.  Even  when  Commis- 
sions have  been  sitting,  the  total  number  of  those  whose  hand 
is  felt  has  never  exceeded  a  dozen.  It  was  doubtless  much 


612        IV.     THE    NINETEENTH    CENTURY 

the  same  in  the  Roman  Empire.  Indeed  the  world  seldom 
realizes  by  how  few  persons  it  is  governed.  There  is  a  sense 
in  which  power  may  be  said  to  rest  with  the  whole  commu- 
nity, and  there  is  also  a  sense  in  which  it  may  be  said,  in 
some  governments,  to  rest  with  a  single  autocrat.  But  in 
reality  it  almost  always  rests  with  an  extremely  small  number 
of  persons,  whose  knowledge  and  will  prevail  over  or  among 
the  titular  possessors  of  authority. 

Before  we  attempt  to  forecast  the  future  of  English  law 
in  India,  let  us  cast  a  glance  back  at  the  general  course  of  its 
history  as  compared  with  that  of  the  law  of  Rome  in  the 
ancient  world. 

VIII.    Comparison  of  the  Roman  Law  with  English  Law  in 

India 

Rome  grew  till  her  law  became  first  that  of  Italy,  then  that 
of  civilized  mankind.  The  City  became  the  World,  Urbs 
became  Orbis,  to  adopt  the  word-play  which  was  once  so 
familiar.  Her  law  was  extended  over  her  Empire  by  three 
methods :  — 

Citizenship  was  gradually  extended  over  the  provinces  till 
at  last  all  subjects  had  become  citizens. 

Many  of  the  principles  and  rules  of  the  law  of  the  City 
were  established  and  diffused  in  the  provinces  by  the  action 
of  Roman  Magistrates  and  Courts,  and  especially  by  the 
Provincial  Edict. 

The  ancient  law  of  the  City  was  itself  all  the  while 
amended,  purged  of  its  technicalities,  and  simplified  in  form, 
till  it  became  fit  to  be  the  law  of  the  World. 

Thus,  when  the  law  of  the  City  was  formally  extended  to 
the  whole  Empire  by  the  grant  of  citizenship  to  all  subjects, 
there  was  not  so  much  an  imposition  of  the  conqueror's  law 
upon  the  conquered  as  the  completion  of  a  process  of 
fusion  which  had  been  going  on  for  fully  four  centuries. 
The  fusion  was  therefore  natural;  and  because  it  was 
natural  it  was  complete  and  final.  The  separation  of  the 
one  great  current  of  Roman  law  into  various  channels,  which 
began  in  the  fifth  century  A.  D.  and  has  continued  ever  since, 


18.     BRYCE:   THE   EXTENSION  OF   LAW   613 

has  been  due  to  purely  historical  causes,  and  of  late  years 
(as  we  shall  see  presently)  the  streams  that  flow  in  these 
channels  have  tended  to  come  nearer  to  one  another. 

During  the  period  of  more  than  four  centuries  (B.  c.  241 
to  A.  D.  211-7),  when  these  three  methods  of  development 
and  assimilation  were  in  progress,  the  original  law  of  the 
City  was  being  remoulded  and  amended  in  the  midst  of  and 
under  the  influence  of  a  non-Roman  population  of  aliens 
(peregrini)  at  Rome  and  in  the  provinces,  and  that  semi- 
Roman  Jaw  which  was  administered  in  the  provinces  was 
being  created  by  magistrates  and  judges  who  lived  in  the 
provinces  and  who  were,  after  the  time  of  Tiberius,  mostly 
themselves  of  provincial  origin.  Thus  the  intelligence,  re- 
flection, and  experience  of  the  whole  community  played  upon 
and  contributed  to  the  development  of  the  law.  Judges, 
advocates,  juridical  writers  and  teachers  as  well  as  legis- 
lators, joined  in  the  work.  The  completed  law  was  the  out- 
come of  a  truly  national  effort.  Indeed  it  was  largely 
through  making  a  law  which  should  be  fit  for  both  Italians 
and  provincials  that  the  Romans  of  the  Empire  became  al- 
most a  nation. 

In  India  the  march  of  events  has  been  different,  because 
the  conditions  were  different.  India  is  ten  thousand  miles 
from  England.  The  English  residents  are  a  mere  handful. 

The  Indian  races  are  in  a  different  stage  of  civilization 
from  the  English.  They  are  separated  by  religion ;  they 
are  separated  by  colour. 

There  ha,s  therefore  been  no  fusion  of  English  and  native 
law.  Neither  has  there  been  any  movement  of  the  law  of 
England  to  adapt  itself  to  become  the  law  of  her  Indian  sub- 
jects. English  law  has  not,  like  Roman,  come  halfway  to 
meet  the  provinces.  It  is  true  that  no  such  approximation 
was  needed,  because  English  law  had  already  reached,  a  cen- 
tury ago,  a  point  of  development  more  advanced  than  Roman 
law  had  reached  when  the  conquest  of  the  provinces  began, 
and  the  process  of  divesting  English  law  of  its  archaic  tech- 
nicalities went  on  so  rapidly  during  the  nineteenth  century 
under  purely  home  influences,  that  neither  the  needs  of  India 
nor  the  influences  of  India  came  into  the  matter  at  all. 


614        IV.     THE    NINETEENTH    CENTURY 

The  Romans  had  less  resistance  to  meet  with  from  re- 
ligious diversities  than  the  English  have  had,  for  the  laws 
of  their  subjects  had  not  so  wrapped  their  roots  round  re- 
ligious belief  or  usage  as  has  been  the  case  in  India.  But 
they  had  more  varieties  of  provincial  custom  to  consider,  and 
they  had,  especially  in  the  laws  of  the  Hellenized  provinces, 
systems  more  civilized  and  advanced  first  to  recognize  and 
ultimately  to  supersede  than  any  body  of  law  which  the 
English  found. 

There  is  no  class  in  India  fully  corresponding  to  the 
Roman  citizens  domiciled  in  the  provinces  during  the  first 
two  centuries  of  the  Roman  Empire.  The  European  British 
subjects,  including  the  Eurasians,  are  comparatively  few, 
and  they  are  to  a  considerable  extent  a  transitory  element, 
whose  true  home  is  England.  Only  to  a  very  small  extent 
do  they  enjoy  personal  immunities  and  privileges  such  as 
those  that  made  Roman  citizenship  so  highly  prized,  for  the 
English,  more  liberal  than  the  Romans,  began  by  extending 
to  all  natives  of  India,  as  and  when  they  became  subjects  of 
the  British  Crown,  the  ordinary  rights  of  British  subjects 
enjoyed  under  such  statutes  as  Magna  Charta  and  the  Bill 
of  Rights.  The  natives  of  India  have  entered  into  the 
labours  of  the  barons  at  Runnymede  and  of  the  Whigs  of 
1688. 

What  has  happened  has  been  that  the  English  have  given 
to  India  such  parts  of  their  own  law  (somewhat  simplified 
in  form)  as  India  seemed  fitted  to  receive.  These  parts  have 
been  applied  to  Europeans  as  well  as  to  natives,  but  they 
were  virtually  applicable  to  Europeans  before  codification 
began.  The  English  rulers  have  filled  up  those  departments 
in  which  there  was  no  native  law  worthy  of  the  name,  some- 
times, however,  respecting  local  native  customs.  Here  one 
finds  an  interesting  parallel  to  the  experience  of  the  Romans. 
They,  like  the  English,  found  criminal  law  and  the  law  of 
procedure  to  be  the  departments  which  could  be  most  easily 
and  promptly  dealt  with.  They,  like  the  English,  were 
obliged  to  acquiesce  in  the  retention  by  a  part  of  the  popula- 
tion of  some  ancient  customs  regarding  the  Family  and  the 
Succession  to  Property.  But  this  acquiescence  was  after 


18.     BRYCE:   THE   EXTENSION  OF   LAW   615 

all  partial  and  local;  whereas  the  English  have  neither  ap- 
plied to  India  the  more  technical  parts  of  their  own  law,  such 
as  that  relating  to  land,  nor  attempted  to  supersede  those 
parts  of  native  law  which  are  influenced  by  religion,  such 
as  the  parts  which  include  family  relations  and  inheritance. 
Thus  there  has  been  no  general  fusion  comparable  to  that 
which  the  beginning  of  the  third  century  A.  D.  saw  in  the 
Roman  Empire. 

As  respects  codification,  the  English  have  in  one  sense 
done  more  than  the  Romans,  in  another  sense  less.  They 
have  reduced  such  topics  as  penal  law  and  procedure,  evi- 
dence and  trusts,  to  a  compact  and  well-ordered  shape,  which 
is  more  than  Justinian  did  for  any  part  of  the  Roman  law. 
But  they  have  not  brought  the  whole  law  together  into  one 
Corpus  luris,  and  they  have  left  large  parts  of  it  in  tripli- 
cate, so  to  speak,  that  is  to  say,  consisting  of  rules  which 
are  entirely  different  for  Hindus,  for  Musulmans,  and  for 
Europeans. 

Moreover,  as  it  is  the  law  of  the  conquerors  which  has  in 
India  been  given  to  the  conquered  practically  unaffected  by 
native  law,  so  also  the  law  of  England  has  not  been  altered 
by  the  process.  It  has  not  been  substantially  altered  in 
India.  The  uncodified  English  law  there  is  the  same  (local 
statutes  excepted)  as  the  law  of  England  at  home.  Still 
less  has  it  been  altered  in  England  itself.  Had  Rome  not 
acquired  her  Empire,  her  law  would  never  have  grown  to  be 
what  it  was  in  Justinian's  time.  Had  Englishmen  never  set, 
foot  in  India,  their  law  would  have  been,  so  far  as  we  can 
tell,  exactly  what  it  is  to-day. 

Neither  have  those  natives  of  India  who  correspond  to 
the  provincial  subjects  of  Rome  borne  any  recognizable  share 
in  the  work  of  Indian  legal  development.  Some  of  them 
have,  as  text-writers  or  as  judges,  rendered  good  service 
in  elucidating  the  ancient  Hindu  customs.  But  the  work 
of  throwing  English  law  into  the  codified  form  in  which  it 
is  now  applied  in  India  to  Europeans  and  natives  alike  has 
been  done  entirely  by  Englishmen.  In  this  respect  also  the 
more  advanced  civilization  has  shown  its  dominant  creative 
force. 


616   IV.  THE  NINETEENTH  CENTURY 

IX.     The  Future  of  English  Law  in  India 

Here,  however,  it  is  fit  to  remember  that  we  are  not,  as  in 
the  case  of  the  Romans,  studying  a  process  which  has  been 
completed.  For  them  it  was  completed  before  the  fifth  cen- 
tury saw  the  dissolution  of  the  western  half  of  the  Empire. 
For  India  it  is  still  in  progress.  Little  more  than  a  century 
has  elapsed  since  English  rule  was  firmly  established;  only 
half  a  century  since  the  Punjab  and  (shortly  afterwards) 
Oudh  were  annexed.  Although  the  Indian  Government  has 
prosecuted  the  work  of  codification  much  less  actively  during 
the  last  twenty  years  than  in  the  twenty  years  preceding, 
and  seems  to  conceive  "that  as  much  has  now  been  done  as 
can  safely  be  done  at  present,  still  in  the  long  future  that 
seems  to  lie  before  British  rule  in  India  the  equalization  and 
development  of  law  may  go  much  further  than  we  can  fore- 
see to-day.  The  power  of  Britain  is  at  this  moment  stable, 
and  may  remain  so  if  she  continues  to  hold  the  sea  and  does 
not  provoke  discontent  by  excessive  taxation. 

Two  courses  which  legal  development  may  follow  are  con- 
ceivable. One  is  that  all  those  departments  of  law  whose 
contents  are  not  determined  by  conditions  peculiar  to  India 
will  be  covered  by  further  codifying  acts,  applicable  to  Eu- 
ropeans and  natives  alike,  and  that  therewith  the  process  of 
equalization  and  assimilation  will  stop  because  its  natural 
limits  will  have  been  reached.  The  other  is  that  the  process 
will  continue  until  the  law  of  the  stronger  and  more  advanced 
race  has  absorbed  that  of  the  natives  and  become  applicable 
to  the  whole  Empire. 

Which  of  these  two  things  will  happen  depends  upon  the 
future  of  the  native  religions,  and  especially  of  Hinduism 
and  of  Islam,  for  it  is  in  religion  that  the  legal  customs  of 
the  natives  have  their  roots.  Upon  this  vast  and  dark  prob- 
lem it  may  seem  idle  to  speculate;  nor  can  it  be  wholly  dis- 
severed from  a  consideration  of  the  possible  future  of  the 
religious  beliefs  which  now  hold  sway  among  Europeans. 
Both  Islam  and  Hinduism  are  professed  by  masses  of  human 
beings  so  huge,  so  tenacious  of  their  traditions,  so  appar- 
ently inaccessible  to  European  influences,  that  no  consider- 


18.     BRYCE:   THE   EXTENSION  OF   LAW   617 

able  declension  of  either  faith  can  be  expected  within  a  long 
period  of  years.  Yet  experience,  so  far  as  it  is  available, 
goes  to  show  that  no  form  of  heathenism,  not  even  an  ancient 
and  in  some  directions  highly  cultivated  form  like  Hinduism, 
does  ultimately  withstand  the  solvent  power  of  European 
science  and  thought.  Even  now,  though  Hinduism  is  grow- 
ing every  day,  at  the  expense  of  the  ruder  superstitions 
among  the  hill-folk,  it  is  losing  its  hold  on  the  educated  class, 
and  it  sees  every  day  members  of  its  lower  castes  pass  over 
to  Islam.  So  Islam  also,  deeply  rooted  as  it  may  seem  to  be, 
wanes  in  the  presence  of  Christianity,  and  though  it  ad- 
vances in  Central  Africa,  declines  in  the  Mediterranean 
countries.  It  has  hitherto  declined  not  by  the  conversion 
of  its  members  to  other  faiths,  but  by  the  diminution  of  the 
Muslim  population ;  yet  one  must  not  assume  that  when  the 
Turkish  Sultanate  or  Khalifate  has  vanished,  it  may  not  lose 
much  of  its  present  hold  upon  the  East.  Possibly  both  Hin- 
duism and  Islam  may,  so  potent  are  the  new  forces  of  change 
now  at  work  in  India,  begin  within  a  century  or  two  to  show 
signs  of  approaching  dissolution.  Polygamy  may  by  that 
time  have  disappeared.  Other  peculiar  features  of  the  law 
of  family  and  inheritance  will  tend  to  follow,  though  some 
may  survive  through  the  attachment  to  habit  even  when  their 
original  religious  basis  has  been  forgotten. 

In  the  Arctic  seas,  a  ship  sometimes  lies  for  weeks  together 
firmly  bound  in  a  vast  ice-field.  The  sailor  who  day  after 
day  surveys  from  the  masthead  the  dazzling  expanse  sees 
oh  every  side  nothing  but  a  solid  surface,  motionless  and 
apparently  immoveable.  Yet  all  the  while  this  ice-field  is 
slowly  drifting  to  the  south,  carrying  with  it  the  embedded 
ship.  At  last,  when  a  warmer  region  has  been  reached  and 
the  south  wind  has  begun  to  blow,  that  which  overnight  was 
a  rigid  and  glittering  plain  is  in  the  light  of  dawn  a  tossing 
mass  of  ice-blocks,  each  swiftly  melting  into  the  sea,  through 
which  the  ship  finds  her  homeward  path.  So  may  it  be  with 
these  ancient  religions.  When  their  dissolution  comes,  it 
may  come  with  unexpected  suddenness,  for  the  causes  which 
will  produce  it  will  have  been  acting  simultaneously  and 
silently  over  a  wide  area.  If  the  English  are  then  still  the 


618        IV.     THE   NINETEENTH   CENTURY 

lords  of  India,  there  will  be  nothing  to  prevent  their  law 
from  becoming  (with  some  local  variations)  the  law  of  all 
India.  Once  established  and  familiar  to  the  people,  it  will 
be  likely  to  remain,  whatever  political  changes  may  befall, 
for  nothing  clings  to  the  soil  more  closely  than  a  body  of 
civilized  law  once  well  planted.  So  the  law  of  England  may 
become  the  permanent  heritage,  not  only  of  the  hundreds 
of  millions  who  will  before  the  time  we  are  imagining  be  liv- 
ing beyond  the  Atlantic,  but  of  those  hundreds  of  millions 
who  fill  the  fertile  land  between  the  Straits  of  Manaar  and 
the  long  rampart  of  Himalayan  snows. 

We  embarked  on  this  inquiry  for  the  sake  of  ascertaining 
what  light  the  experience  of  the  English  in  India  throws 
upon  the  general  question  of  the  relation  of  the  European 
nations  to  those  less  advanced  races  over  whom  they  are 
assuming  dominion,  and  all  of  whom  will  before  long  own 
some  European  master.1 

These  races  fall  into  two  classes,  those  which  do  and  those 
which  do  not  possess  a  tolerably  complete  system  of  law. 
Turks,  Persians,  Egyptians,  Moors,  and  Siamese  belong  to 
the  former  class;  all  other  non-European  races  to  the 
latter. 

As  to  the  latter  there  is  no  difficulty.  So  soon  as  Kafirs 
or  Mongols  or  Hausas  have  advanced  sufficiently  to  need 
a  regular  set  of  legal  rules,  they  will  (if  their  European 
masters  think  it  worth  while)  become  subject  to  the  law  of 
those  masters,  of  course  more  or  less  differentiated  according 
to  local  customs  or  local  needs.  It  may  be  assumed  that 
French  law  will  prevail  in  Madagascar,  and  English  law  in 
Uganda,  and  Russian  law  in  the  valley  of  the  Amur. 

Where,  however,  as  is  the  case  in  the  Musulman  and  per- 
haps also  in  the  Buddhist  countries  belonging  to  the  former 
class,  a  legal  system  which,  though  imperfect,  especially  on 
the  commercial  side,  has  been  carefully  worked  out  in  some 

1  Among  the  "  less  advanced  races "  one  must  not  now  include  the 
Japanese,  but  one  may  include  the  Turks  and  the  Persians.  The  fate 
of  China  still  hangs  in  the  balance.  It  is  not  to  be  assumed  that  she 
will  be  ruled,  though  she  must  come  to  be  influenced,  and  probably  more 
and  more  influenced,  by  Europeans. 


18.     BRYCE:   THE   EXTENSION  OF   LAW   619 

directions,  holds  the  field  and  rests  upon  religion,  the  ques- 
tion is  less  simple.  The  experience  of  the  English  in  India 
suggests  that  European  law  will  occupy  the  non-religious 
parts  of  the  native  systems,  and  will  tend  by  degrees  to 
encroach  upon  and  permeate  even  the  religious  parts,  though 
so  long  as  Islam  (or  Brahmanism)  maintains  its  sway  the 
legal  customs  and  rules  embedded  in  religion  will  survive. 
No  wise  ruler  would  seek  to  efface  them  so  far  as  they  are 
neither  cruel  nor  immoral.  It  is  only  these  ancient  religions 
—  Hinduism,  Buddhism,  and  especially  Islam  —  that  can  or 
will  resist,  though  perhaps  only  for  a  time,  and  certainly 
only  partially,  the  rising  tide  of  European  law. 

X.     Present  Position  of  Roman  and  English  Law  in  the 

World 

European  law  means,  as  we  have  seen,  either  Roman  law 
or  English  law,  so  the  last  question  is:  Will  either,  and  if 
so  which,  of  these  great  rival  systems  prevail  over  the 
other  ? 

They  are  not  unequally  matched.  The  Roman  jurists,  if 
we  include  Russian  as  a  sort  of  modified  Roman  law,  influ- 
ence at  present  a  larger  part  of  the  world's  population,  but 
Bracton  and  Coke  and  Mansfield  might  rejoice  to  perceive 
that  the  doctrines  •  which  they  expounded  are  being  diffused 
even  more  swiftly,  with  the  swift  diffusion  of  the  English 
tongue,  over  the  globe.  It  is  an  interesting  question,  this 
competitive  advance  of  legal  systems,  and  one  which  would 
have  engaged  the  attention  of  historians  and  geographers, 
were  not  law  a  subject  which  lies  so  much  outside  the 
thoughts  of  the  lay  world  that  few  care  to  study  its  histor- 
ical bearings.  It  furnishes  a  remarkable  instance  of  the 
tendency  of  strong  types  to  supplant  and  extinguish  weak 
ones  in  the  domain  of  social  development.  The  world  is,  or 
will  shortly  be,  practically  divided  between  two  sets  of  legal 
conceptions  or  rules,  and  two  only.  The  elder  had  its  birth 
in  a  small  Italian  city,  and  though  it  has  undergone  endless 
changes  and  now  appears  in  a  variety  of  forms,  it  retains 
its  distinctive  character,  and  all  these  forms  still  show  an 


620        IV.     THE   NINETEENTH   CENTURY 

underlying  unity.  The  younger  has  sprung  from  the  union 
of  the  rude  customs  of  a  group  of  Low  German  tribes  with 
rules  worked  out  by  the  subtle,  acute  and  eminently  dis- 
putatious intellect  of  the  Gallicized  Norsemen  who  came  to 
England  in  the  eleventh  century.  It  has  been  much  affected 
by  the  elder  system,  yet  it  has  retained  its  distinctive 
features  and  spirit,  a  spirit  specially  contrasted  with  that 
of  the  imperial  law  in  everything  that  pertains  to  the  rights 
of  the  individual  and  the  means  of  asserting  them.  And  it 
has  communicated  something  of  this  spirit  to  the  more  ad- 
vanced forms  of  the  Roman  law  in  constitutional  countries. 

At  this  moment  the  law  whose  foundations  were  laid  in 
the  Roman  Forum  commands  a  wider  area  of  the  earth's 
surface,  and  determines  the  relations  of  a  larger  mass  of 
mankind.  But  that  which  looks  back  to  Westminster  Hall 
sees  its  subjects  increase  more  rapidly,  through  the  growth 
of  the  United  States  and  the  British  Colonies,  and  has  a 
prospect  of  ultimately  overspreading  India  also.  Neither 
is  likely  to  overpower  or  absorb  the  other.  But  it  is  possible 
that  they  may  draw  nearer,  and  that  out  of  them  there  may 
be  developed,  in  the  course  of  ages,  a  system  of  rules  of 
private  law  which  shall  be  practically  identical  as  regards 
contracts  and  property  and  civil  wrongs,  possibly  as  regards 
offences  also.  Already  the  commercial  law  of  all  civilized 
countries  is  in  substance  the  same  everywhere,  that  is  to 
say,  it  guarantees  rights  and  provides  remedies  which  afford 
equivalent  securities  to  men  in  their  dealings  with  one  an- 
other and  bring  them  to  the  same  goal  by  slightly  different 
paths. 

The  more  any  department  of  law  lies  within  the  domain 
of  economic  interest,  the  more  do  the  rules  that  belong  to  it 
tend  to  become  the  same  in  all  countries,  for  in  the  domain 
of  economic  interest  Reason  and  Science  have  full  play. 
But  the  more  the  element  of  human  emotion  enters  any 
department  of  law,  as  for  instance  that  which  deals  with 
the  relations  of  husband  and  wife,  or  of  parent  and  child, 
or  that  which  defines  the  freedom  of  the  individual  as  against 
the  State,  the  greater  becomes  the  probability  that  existing 
divergences  between  the  laws  of  different  countries  may  in 


•      18.    BRYCE:   THE   EXTENSION  OF   LAW   621 

that  department  continue,  or  even  that  new  divergences  may 
appear. 

Still,  on  the  whole,  the  progress  of  the  world  is  towards 
uniformity  in  law,  and  towards  a  more  evident  uniformity 
than  is  discoverable  either  in  the  sphere  of  religious  beliefs 
or  in  that  of  political  institutions. 


PART    V. 


19     The  Five  Ages  of  the  Bench  and  Bar  of  England. 

JOHN  MAXCY  ZANE. 

20.  A  Century  of  English  Judicature,  1800-1900. 

VAN  VECHTEN  VEEDER. 

21.  An  American  Law  Student  of  a  Hundred  Years  Ago. 

JAMES  KENT. 


19.  THE  FIVE  AGES  OF  THE  BENCH  AND  BAR 
OF  ENGLAND1 

BY  JOHN  MAXCY  ZANE  2 

IT  is  a  singular  fact  that  but  two  races  in  the  history  of 
the  world  have  shown  what  may  be  called  a  genius  for 
law.  The  systems  of  jurisprudence,  which  owe  their  develop- 
ment to  those  two  races,  the  Roman  and  the  Norman,  now 
occupy  the  whole  of  the.  civilized  world.  Our  common  law 
is  peculiarly  the  work  of  the  Norman  element  of  the  English 
people.  There  is  no  English  law,  nor  English  lawyer,  be- 
fore the  Norman  Conquest.  Just  as  the  Saxons  with  their 
crude  weapons  and  bull-hide  shields  broke  before  the  Norman 
knights  at  Senlac,  so  their  barbarous  system  of  wer,  wite, 
and  bot,  their  ridiculous  ordeals  in  the  criminal  law,  their 
haphazard  judicial  tribunals,  and  their  methods  of  proof, 
which  had  no  connection  with  any  rational  theory  of  evi- 
dence, were  certain  to  yield  to  the  Norman  organization, 
its  love  of  order  and  of  records,  its  royal  inquisition  for  es- 
tablishing facts,  its  King's  Court  to  give  uniformity  to  the 
law.  The  Norman  Conquest  was  more  than  a  change  of 
dynasty.  It  produced  a  revolution  in  jurisprudence. 

The   history    of  our   legal   development   furnishes    ample 

1  Hitherto   unpublished,   except  that   the  first  part   appeared   in  the 
Illinois  Law  Review,  volume  II,  p.  1,  June,  1907.     All  five  parts  were 
publicly  read  as  lectures,  in   February  and  March,  1906,  in  the  Law 
School  of  Northwestern  University. 

2  Lecturer   on   Legal   History   and   Biography   in   Northwestern   Uni- 
versity,  1905-1906.     A.  B.   Michigan   University,  1884;    admitted  to  the 
bar  in  Salt  Lake  City,  Utah,  1888j    Reporter  of  the  Supreme  Court  of 
Utah,  1889-1894;  Member  of  the  Chicago  Bar  since  1899;  Lecturer  on 
Mining  Law  in  the  University  of  Cnicago,  since  1902. 

Other  Publications:  Law  of  B^nks  and  Banking,  1900;  Determi- 
nable  Fees,  and  other  articles  in  the  Harvard  Law  Review;  A  Mediaeval 
Cause  Celebre,  Illinois  Law  Review,  >1907. 

625 


626  F.     BENCH    AND    BAR 

proof  of  this.  Our  huge  mass  of  legal  literature  is  a 
treasure  that  no  other  race  possesses.  Our  records  and 
reports  of  cases,  many  of  them  still  imperfectly  known, 
carry  our  legal  history  back  almost  to  the  Conquest.  There 
the  law  can  be  seen  in  its  growth,  taking  on  new  forms  to 
meet  new  conditions.  The  genius  of  the  Norman  lawyer  nas 
developed  our  legal  system  from  one  precedent  to  another. 
Beginning  with  the  barbarous  legal  ideas  of  the  Anglo- 
Saxon,  the  Norman  in  the  course  of  two  centuries  produced 
a  rational  coherent  system  of  law,  and  a  procedure  capable 
of  indefinite  expansion.  The  growth  and  changes  in  our 
law  have  followed  Lord  Bacon's  rule :  "  It  were  good,  there- 
fore, that  men  in  their  innovations  would  follow  the  example 
of  time  itself ;  which,  indeed,  innovateth  greatly,  but  quietly, 
and  by  degrees,  scarce  to  be  perceived."  The  further  fact, 
that  this  system  of  law  has  been  applied  by  practically  but 
one  court,  has  rendered  the  common  law  uniform.  It  rep- 
resents the  slow  and  patient  work  of  generation  after  gen- 
eration of  able  men.  To  use  a  fine  figure  of  Burke's,  our 
legal  system  has  never  been  at  any  one  time  "  old,  or  middle- 
aged,  or  young.  It  has  preserved  the  method  of  nature; 
in  what  has  been  improved,  it  was  never  wholly  new ;  in  what 
it  retained,  it  was  never  wholly  obsolete."  Like  some  ancient 
Norman  house,  "  it  has  its  liberal  descent,  its  pedigree  and 
illustrating  ancestors,  its  bearings  and  ensigns  armorial, 
its  gallery  of  portraits,  its  monumental  inscriptions,  its  rec- 
ords, evidences,  and  titles." 

The  design  of  these  essays  is  to  survey  "  the  gallery  of 
portraits  "  that  belongs  to  the  English  law.  It  will  not  be 
possible  to  advert  to  legal  doctrines  further  than  may  be 
necessary  to  illustrate  the  acts  of  eminent  lawyers.  An 
attempt  will  be  made  to  describe  the  men  who  have  assisted 
in  the  growth  and  development  of  our  jurisprudence.  Un- 
like France,  England  has  never  had  a  noblesse  of  the  robe. 
Lawyers  have  found  their  rewards  in  the  same  honors  that 
England  has  given  to  her  admirals  and  her  generals.  The 
peerage  is  a  fair  standard  by  which  to  judge  of  the  honors 
that  have  been  attained  by  excellence  in  the  law.  While 
great  soldiers  are  represented  in  the  House  of  Lords  by  the 


19.     ZANE:    THE    FIVE    AGES  627 

Dukes  of  Marlborough  and  Wellington,  the  Marquis  of 
Anglesey,  Viscounts  Hardinge,  Wolseley  and  Kitchener,  and 
Lords  Napier  of  Magdala  and  Raglan,  while  great  admirals 
are  represented  by  Earl  Nelson,  the  Earl  of  Effingham  and 
Earl  Howe,  Viscounts  Exmouth,  St.  Vincent,  Bridport,  and 
Torrington,  and  Lords  Rodney  and  Vernon,  the  representa- 
tives of  lawyers  almost  fill  the  benches  of  the  Lords.  Lord 
Thurlow's  famous  reply  to  the  Duke  of  Grafton  asserted: 
"  The  noble  duke  can  not  look  before  him,  behind  him,  or 
on  either  side  of  him,  without  seeing  some  noble  peer  who 
owes  his  seat  in  this  House  to  his  successful  exertions  in  the 
profession  to  which  I  belong."  The  King  himself  is  king 
of  Scotland  through  his  descent  from  Lord  Chief  Justice 
Bruce.  The  Dukes  of  Beaufort,  Devonshire,  Manchester, 
Newcastle,  Norfolk,  Portland,  Northumberland,  Rutland 
and  St.  Albans  are  all  descended  from  English  judges. 
Chief  Justice  Catlin  was  an  ancestor  of  the  Spencer,  who 
married  the  Marlborough  title.  The  Marquises  of  Aber- 
gavenny,  Ailesbury,  Bristol,  Camden,  Ripon  and  Townsend, 
the  Earls  of  Aylesford,  Bathurst,  Bradford,  Buckingham- 
shire, Cadogan,  Cairns,  Carlisle,  Cottenham,  Cowper,  Crewe, 
Eldon,  Egerton,  Ellesmere,  Fortescue,  Guildford,  Hardwicke, 
Harrowby,  Leicester,  Lonsdale,  Macclesfield,  Mansfield, 
Sandwich,  Selborne,  Shrewsbury,  Suffolk,  Stamford,  Veru- 
lam,  Westmoreland,  Nottingham  and  Winchelsea,  and  Yar- 
borough,  represent  names  great  in  English  law.  Other  titles 
among  the  barons,  such  as  Abinger,  Bolton,  Brougham, 
Erskine,  James  of  Hereford,  Le  Despencer,  Mowbray  and 
Segrave,  Northington,  Redesdale,  Romilly,  St.  Leonards, 
Campbell,  Tenterden,  Walsingham,  Thurlow,  and  many 
others,  were  gained  by  great  lawyers. 

The  fable  of  the  ancients,  which  school  boys  read  in  Ovid's 
Metamorphoses,  divided  the  history  of  the  world  into  a 
golden,  a  silver,  a  bronze  and  an  iron  age.  The  golden 
age  "  sine  lege  fidem  et  rectum  colebat"  This  is  in  a  meas- 
ure true  of  the  common  law.  Its  first  age,  without  stat- 
utes, out  of  its  own  ample  powers,  gave  a  remedy  for 
every  wrong.  There  followed  a  silver  age,  "  auro  deterior," 
when  new  remedies  could  be  devised  only  by  statute.  Then 


628  V.    BENCH   AND   BAR 

a  bronze  or  plastic  age,  by  fictions,  bent  old  remedies  to 
suit  new  conditions.  Later,  an  iron  age,  harsh  and  rigid, 
owing  to  the  jury  system,  left  a  large  part  of  juris- 
prudence to  the  courts  of  chancery.  The  golden  age  ends 
with  the  death  of  Bracton ;  the  silver  age  is  that  of  the 
three  Edwards;  the  bronze  age  covers  the  Lancastrian 
and  Yorkist  kings  to  the  death  of  Littleton ;  the  iron  age 
ends  with  the  Revolution  of  1688.  Then  a  period  of  im- 
provement and  reform,  slowly  feeling  its  way  by  statutes 
of  jeofails  to  the  great  reforms  of  our  century,  began;  the 
end  of  that  great  effort  is  now  almost  attained,  and  perhaps 
the  golden  age  is  about  to  return.1 

L     The  Golden  Age  of  the  Common  Law: 
From  the  Norman  Conquest  to  the  Death  of  Bracton  2 

The  period  of  the  Norman  kings  is  one  of  gradual  growth. 
The  Norman  lawyers,  building  upon  what  they  found,  made 
no  violent  changes.  The  Conqueror,  under  the  wise  guidance 
of  Lanfranc,  made  no  attempt  to  change  existing  laws  and 
customs.  Beyond  taking  ecclesiastical  matters  out  of  the 
jurisdiction  of  the  county  court,  and  protecting  his  Norman 
followers  by  special  laws  and  tribunals,  his  reign  was  occu- 
pied in  establishing  the  king  as  the  ultimate  owner  of  the 
conquered  land  and  in  the  division  of  the  spoil.  But  even 
in  that  troubled  time,  one  capable  man  rose  to  eminence  as 
a  lawyer.  The  Italian  Lanfranc,  Archbishop  of  Canterbury, 
learned  in  the  civil  law,  by  his  study  of  Anglo-Saxon  laws 
prevailed  in  the  one  great  lawsuit  of  this  reign.  The  Domes- 

1  [A  Table  of  Regnal  Years  is  prefixed  to  this  volume.,  —  EDS.] 
*  The  authorities  for  this  period,  beside  the  well-known  works  of 
Pollock  and  Maitland,  Foss,  Lord  Campbell,  Stubbs,  Hallam  and  the 
other  historians,  include  Bigelow's  Placita  Anglo-Normannica,  Freeman's 
William  Rufus,  Burke's  Dormant  and  Extinct  Peerages,  Dugdale's 
Baronage,  Maitland's  Domesday,  Pollock's  King's  Justice  (12  Harv.  L. 
Rev.),  Pollock's  King's  Peace  (13  Harv.  L.  Rev.),  Foss'  Memories  of 
Westminster  Hall,  Hall's  Court  Life  Under  the  Plantagenets,  Mrs. 
Green's  Henry  II.,  Pulling's  Order  of  the  Coif,  Scale's  Introduction  to 
his  edition  of  Glanville,  Maitland's  Register  of  Writs  (3  Harv.  L. 
Rev.),  Maitland's  Introduction  to  Bracton's  Note  Book,  Maitland's  Brac- 
ton and  Azo,  Select  Pleas  of  the  Crown  (Selden  Society),  Select  Civil 
Pleas  (Selden  Society),  and  numerous  sources  of  general  history,  such 
as  William  of  Malmesbury,  Matthew  Paris,  etc. 


19.     ZANE:    THE    FIVE    AGES  629 

day  Survey,  which  enumerated  all  the  lands  in  England,  and 
ascertained  the  status  of  each  subject,  and  the  ownership 
of  the  land  with  its  burdens  and  the  rents  and  the  services 
due  from  tenants  of  the  land,  was  probably  superintended 
by  this  great  lawyer. 

William  Rufus  had  for  his  chief  minister  a  man  whom 
the  annalist  calls  "  invictus  causidicus,"  an  ever  successful 
pleader.  This  Ranulf  Flambard  was  learned  in  the  civil  and 
the  canon  law,  and  is  the  first  of  that  long  line  of  trained 
lawyers,  whose  duty  it  was  to  fill  the  royal  treasury.  He 
worked  out  the  legal  principles  of  relief  and  wardship. 
Ecclesiastic  though  he  was,  he  laid  his  hands  upon  the  broad 
lands  of  the  church.  All  church  lands  held  of  the  king 
devolved,  upon  the  death  of  bishop  or  abbot,  according  to 
Ranulf,  upon  the  king  as  feudal  lord.  The  great  revenue 
to  be  derived  from  farming  out  these'  lands  was  an  obvious 
temptation,  but  Flambard  devised  a  further  improvement. 
Since  the  bishop  or  abbot  could  not  be  inducted  into  office 
without  the  king's  consent  and  the  payment  of  a  relief,  the 
candidate  for  high  clerical  honors  was  compelled  to  wait  a 
number  of  years  before  receiving  his  office  and  at  the  same 
time  was  compelled  to  pay  an  ample  relief  before  he  received 
investiture  of  the  lands.  It  is  needless  to  say  that  the  monk- 
ish chroniclers  have  loaded  Ranulf's  memory  with  a  mass  of 
obloquy. 

In  Rufus'  time  an  event  occurred  which  every  lawyer  re- 
calls with  peculiar  interest.  The  King  contemplated  a  new 
palace  at  Westminster,  but  only  that  part  of  it  which  con- 
stitutes Westminster  Hall  was  built.  It  is  true  that  the  Hall 
has  been  twice  rebuilt,  once  in  Henry  III.'s  reign,  and  again 
under  Richard  II.,  but  the  Hall  itself,  saving  for  its  higher 
roof,  its  windows,  and  higher  walls,  is  what  it  was  when  fin- 
ished in  1099.  In  this  Hall  the  courts  of  England  were  held 
for  many  centuries.  As  soon  as  the  Court  of  Common  Pleas 
was  fixed  in  certo  loco,  it  continuously  sat  there.  Later  the 
King's  Bench  took  a  portion  of  it.  At  one  end  of  the  Hall 
was  fixed  the  marble  seat  and  table  of  the  Chancellor,  where 
his  court  was  held.  Thus  it  happened  that  for  centuries  the 
courts  of  England  were  in  plain  sight  of  each  other.  When 


630  V.     BENCH   AND   BAR 

Sir  Thomas  More  was  being  inducted  as  chancellor  under 
Henry  VIII.,  he  stopped  in  his  progress  to  the  marble  chair 
and  knelt  to  receive  a  blessing  from  his  father,  a  judge  sit- 
ting«in  the  Common  Pleas.  There  is  but  one  other  building 
in  the  world  that  offers  such  a  flood  of  legal  memories.  The 
old  Palais  de  Justice  in  Paris  has  been  the  scene  of  many  a 
great  legal  controversy,  but  Westminster  Hall  has  listened 
to  the  judgments  of  Pateshull  and  Raleigh  and  Hengham. 
Here  Gascoigne,  Fortescue,  Brian,  Littleton,  Dyer,  Coke  and 
Bacon  sat.  Here  Hale  and  Nottingham,  Hardwicke  and 
Mansfield  did  their  work  for  jurisprudence.  The  great  fo- 
rensic contests  of  England,  the  arguments  in  the  case  of 
Ship-Money,  the  trial  of  the  Seven  Bishops,  Erskine's  perfect 
oratory  in  Hardy's  case,  and  Brougham  in  the  Queen's  case, 
are  among  the  memories  that  make  this  solid  Norman  edifice 
to  lawyers  the  most  interesting  spot  in  England. 

In  the  reign  of  Henry  I.,  a  man  splendidly  educated  for 
that  time,  surnamed  Beauclerk,  the  Scholar,  we  begin  to  see 
the  growing  interest  in  the  law.  Wearied  of  the  oppressions 
of  the  Conqueror  and  Rufus,  men  looked  back  to  the  good 
old  times  of  the  Saxon.  The  King  had  married  a  princess 
of  the  Saxon  royal  house.  Himself  a  usurper  he  looked  to 
his  Saxon  subjects  for  support.  They  won  for  Stephen  the 
Battle  of  the  Standard  against  the  Scotch,  celebrated  by 
Cedric  in  Ivanhoe.  In  the  Saxon  enthusiasm  a  large  crop  of 
Saxon  laws  appeared,  some  of  them  actual  translations  from 
old  laws,  some  of  them  palpable  forgeries.  The  King  even 
promised  to  restore  the  old  local  courts  of  the  Saxons ;  had 
he  done  so,  we  should  have  had  no  common  law.  It  was  by  this 
time  apparent  that  the  king's  court  was  supplanting  the  old 
tribunals.  The  great  lawsuits,  being  among  the  magnates, 
necessarily  came  before  the  king's  courts.  That  court  was 
stronger  than  any  other,  and  suitors  instinctively  would  turn 
to  it.  The  criminal  jurisdiction  of  the  king's  court  was 
growing.  Its  jurisdiction  was  extended  to  suitors  in  civil 
causes  first  as  a  matter  of  favor.  The  bishop  had  been  taken 
out  of  the  county  court  and  given  a  separate  jurisdiction  in 
ecclesiastical  matters,  among  which  were  numbered  the  ad- 
ministration of  estates  of  decedents  and  matters  of  marriage 


19.     ZANE:    THE    FIVE    AGES  631 

and  divorce.  Now  under  Henry  I.  began  the  practice  of 
sending  trained  lawyers  throughout  the  realm  to  take  pleas 
of  the  crown  and  to  hear  civil  causes.  At  the  same  time 
Roger  of  Salisbury,  who  was  the  legal  adviser  of  Henry  I., 
developed  the  exchequer  portion  of  the  king's  court.  A 
group  of  men,  some  of  them  trained  lawyers,  gathered  in 
the  exchequer  tribunal.  They  did  incidental  justice  in  civil 
controversies  and  traveled  the  circuit.  Indeed,  Pulling  in 
his  "  Order  of  the  Coif  "  dates  his  first  serjeant  at  law  from 
1117;  but  this  must  be  a  printer's  error.  Otherwise,  Pull- 
ing's  first  serjeant  is  as  wild  a  piece  of  history  as  Chief 
Justice  Catlin's  descent  from  Lucius  Sergius  Catiline. 

Besides  Roger  of  Salisbury  we  know  of  one  very  celebrated 
lawyer  in  this  reign  —  a  man  then  renowned  in  the  law, 
named  Alberic  de  Vere.  He  is  described  by  William  of 
Malmesbury  as  causidicus  and  homo  causarum  varietatibus 
exercitatus.  Where  he  gained  his  legal  education  is  not 
known.  He  was  a  son  of  one  of  the  Conqueror's  chief  barons, 
the  Count  of  Guynes,  in  Normandy.  One  of  the  chiefs  of 
that  house  marched  with  Godfrey  of  Bouillon  to  the  rescue 
of  the  Holy  Sepulchre.  The  lists  of  the  men  who  acted 
as  judges  in  the  king's  courts  show  the  names  of  many  well- 
known  Norman  families  during  this  reign.  The  educated 
lawyers  were  generally  churchmen,  yet  the  Norman  barons 
had  a  natural  taste  for  litigation.  After  a  hundred  years, 
scions  of  the  great  houses  were  to  become  the  trained  lawyers 
of  the  profession ;  but  at  this  time  the  ecclesiastics  did  most 
of  the  technical  legal  work.  They  issued  the  writs  from  the 
chancery ;  they  were  needed  to  keep  whatever  records  were 
kept.  Alberic  de  Vere  was  not  an  ecclesiastic  like  Roger  or 
Nigel  of  Salisbury,  yet  he  was  high  in  the  confidence  of 
Henry  I.,  who  granted  to  him  and  his  heirs  the  dignity 
of  Lord  Great  Chamberlain  of  England,  —  the  only  great 
office  of  state  that  by  a  regular  course  of  inheritance  has 
descended  to  its  present  holder. 

When  Henry  I.  died,  the  interregnum  caused  by  the  contest 
between  Henry's  daughter  Matilda  and  his  nephew  Stephen 
covered  the  land  with  misgovernment  and  oppression.  Roger 
of  Salisbury's  son,  euphemistically  called  his  nephew  —  and 


632  V.    BENCH   AND   BAR 

it  was  by  no  means  an  uncommon  thing  for  bishops  to  have 
sons  in  those  days  —  became  chancellor,  but  he  soon  fell 
under  the  displeasure  of  "King  Stephen,  and  in  consequence 
the  aged  Bishop  Roger  and  his  family  received  the  harshest 
treatment.  The  churchmen  complained  of  the  King's  con- 
duct, and  a  great  council  was  called  by  the  Bishop  of  Win- 
chester to  examine  into  the  matter.  King  Stephen  selected 
Alberic  de  Vere  to  represent  him  at  the  council.  Alberic 
seems  to  have  successfully  defended  the  King,  and  either  he 
or  his  son  was  rewarded  with  the  earldom  of  Oxford. 

Coke,  following  a  saying  of  Fortescue,  makes  the  quaint 
observation  that  "  the  blessing  of  Heaven  specially  descends 
upon  the  posterity  of  a  great  lawyer."  Certainly  the  high 
position  of  the  posterity  of  Alberic  de  Vere  may  be  adduced 
as  proof  of  the  saying.  Earls  of  Oxford  of  the  house  of 
Vere  were  great  figures  in  English  history  until  after  the 
Revolution  of  1688.  The  third  earl  was  one  of  the  barons 
who  extorted  Magna  Charta  from  King  John.  The  well- 
known  seal  of  the  Earl  of  Oxford  is  on  the  charter.  The 
next  earl,  who  had  as  a  younger  son  been  brought  up  as  a 
lawyer,  was  head  of  the  Common  Bench  under  Henry  III. 
The  seventh  earl  was  in  high  command  at  Crecy  under  Ed- 
ward III.  and  at  Poitiers  under  the  Black  Prince.  The  ninth 
earl  was  a  favorite  of  Richard  II.  and  became  Marquis  of 
Dublin  and  Duke  of  Ireland.  Although  his  honors  were 
forfeited  by  Parliament,  his  uncle,  another  Alberic  (or  Au- 
brey) regained  the  earldom  and  the  estates  under  Henry  IV. 
The  thirteenth  earl  was  the  chief  of  the  party  of  the  Red 
Rose  and  during  the  Yorkist  reigns  wandered  over  the  con- 
tinent. Scott's  romance,  Anne  of  Geierstein,  tells  his  story 
while  in  exile.  He  came  back  with  Henry  VII.  and  led  the 
Lancastrians  at  the  battle  of  Bosworth.  The  seventeenth 
earl,  a  courtier  and  poet,  at  the  court  of  Elizabeth,  did  not 
disdain  to  introduce  gloves  and  perfumes  into  England. 
When  the  eighteenth  earl  died  without  issue,  a  noted  lawsuit 
ensued  over  the  Oxford  peerage;  the  judgment  of  Chief 
Justice  Crewe  *  is  an  oft  quoted  specimen  of  judicial  elo- 
quence : 

>W.  Jones  Rep.  101. 


19.     ZANE:    THE   FIVE   AGES  633 

"  I  have  laboured  to  make  a  covenant  with  myself,  that 
affection  may  not  press  upon  judgment;  for  I  suppose 
there  is  no  man,  that  hath  any  apprehension  of  gentry  or 
nobleness,  but  his  affection  stands  to  the  continuance  of  so 
noble  a  name  and  house,  and  would  take  hold  of  a  twig  or 
twine  thread  to  uphold  it.  And  yet,  Time  hath  his  revolu- 
tions. There  must  be  a  period  and  an  end  of  all  temporal 
things,  —  finis  rerum,  —  an  end  of  names  and  dignities  and 
whatsoever  is  terrene ;  and  why  not  of  De  Vere  ?  For,  where 
is  Bohun?  Where's  Mowbray?  Where's  Mortimer?  Nay, 
which  is  more,  and  most  of  all,  where  is  Plantagenet?  They 
are  entombed  in  the  urns  and  sepulchres  of  mortality." 

But  the  end  of  the  house  was  not  yet.  The  nineteenth 
earl  died  on  the  continent  while  fighting  for  Protestantism. 
The  twentieth  earl,  "  the  noblest  subject  in  England,"  man 
of  loose  morals  though  he  was,  was  too  much  a  Protestant 
to  follow  James  II.  in  his  attempt  to  restore  Roman  Catholi- 
cism. When  this  twentieth  earl  died,  the  male  posterity  of 
Aubrey  de  Vere  was  extinct;  but  his  daughter  and  heiress, 
Diana,  was  married  to  Nell  Gwynn's  son  by  Charles  II.,  the 
Duke  of  St.  Albans.  This  son  had  been  given  the  name  of 
Beauclerk,  and  until  recently  the  name  of  this  family  was 
de  Vere  Beauclerk.  Topham  and  Lady  Di  Beauclerk  will  be 
remembered  as  friends  of  Dr.  Johnson.  But  the  present 
holder  of  the  title  seems  to  wish  to  forget  his  name  Beau- 
clerk  and  is  well  content  to  be  simply  de  Vere.  Heraldry, 
which  is  called  "  the  short-hand  of  history,"  shows  this 
descent  in  the  coat  of  arms  of  the  St.  Albans  family;  in  the 
first  and  fourth  quarters  are  the  royal  arms,  debruised  by 
a  baton  sinister  to  show  illegitimate  descent,  while  in  the 
second  and  third  quarters  is  the  ancient  cognizance  of  the 
Earls  of  Oxford,  indicating  a  marriage  with  the  heiress  of 
the  Veres.  ,. 

Another  stout  judicial  baron  of  ^this  time  is  Milo  of 
Gloucester,  whose  estates  enriched  in  after  times  the  house 
of  Bohun.  His  exploit  in  marching  to  the  relief  of  the 
widow  of  Richard  de  Clare,  besjeged  in  her  castle  by  the 
Welsh  after  the  murder  of  her  husband,  may  have  fur- 
nished Sir  Walter  Scott  with  his  story  of  "  The  Betrothed," 


634  F.     BENCH   AND   BAR 

where  he  tells  of  the  succor  of  the  Lady  Eveline  Berenger 
in  the  Garde  Doloreuse.  In  fact,  if  we  may  judge  from 
Ivanhoe,  Scott  must  have,  taken  many  of  his  names  from  the 
judicial  barons.  Fronteboeuf,  Grantmesnil  and  Malvoisin  are 
names  on  the  rolls  of  the  courts.  Segrave,  a  noted  lawyer 
in  Henry  III.'s  reign,  was,  like  Ivanhoe,  a  Saxon  who  at- 
tained high  position. 

In  the  reign  of  Henry  II.,  who  succeeded  Stephen,  we 
begin  to  get  a  glimpse  of  an  organized  legal  profession. 
This  king  was  a  great  organizer  and  lawyer.  His  statutes 
of  novel  disseisin  and  mort  dancester,  his  assize  utrum  and 
of  last  presentment  were  drawn  by  lawyers.  In  his  reign 
the  royal  inquisition  took  a  great  step  toward  the  modern 
jury.  All  litigation  about  land  was  thrown  into  the  king's 
courts.  Many  new  writs  and  forms  of  action  were  invented. 
A  fixed  court  made  up  of  trained  lawyers  sat  at  West- 
minster. At  the  same  time  the  country  was  divided  into 
circuits,  itinerant  justices  traveled  the  circuit  and  adapted 
the  county  court  to  the  regular  progresses  of  the  king's 
judges.  The  grand  jury  was  now  brought  into  form,  and 
all  the  important  criminal  business  came  before  the  royal 
justices. 

In  the  king's  court  Henry  himself  often  sat.  He  is  sur- 
rounded by  his  council,  but  every  now  and  then  he  retires 
to  consult  with  a  special  body.  The  judges  take  sides  and 
on  one  occasion  the  King  orders  Geoffrey  Ridel,  who  seems 
too  zealous  for  one  party,  from  the  room.  The  King  peruses 
the  deeds  and  charters,  and  when  certain  charters  are  pro- 
duced we  hear  him  swearing  that  "  by  God's  eyes  "  they 
cost  him  dearly  enough.  On  another  occasion  two  charters 
of  Edward  the  Confessor,  wholly  contradictory,  are  pro- 
duced. The  King,  nonplussed,  says :  "  I  don't  know  what  to 
say,  except  that  here  is  a  pitched  battle  between  deeds." 

Now  began  the  keeging  upon  parchment  of  the  records  of 
cases.  The  best  picture  of  a  lawsuit  in  this  reign  is  the 
extraordinary  litigation  of  Richard  de  Anesty.  He  claimed 
certain  lands  as  heir  of  his.  uncle.  An  illegitimate  daughter 
of  the  uncle  was  in  possession.  The  question  was  as  to  her 
legitimacy  and  that  depended  for  solution  upon  the  issue 


19.     ZANE:    THE   FIVE    AGES  635 

of  marriage  or  no  marriage.  Richard  begins  by  sending  to 
the  King  in  Normandy  for  a  writ  of  mort  dancester.  Then 
the  issue  of  marriage  must  be  directed  by  writ  from  the 
king's  court  to  the  ecclesiastical  court.  The  war  in  France 
intervenes,  and  Richard  follows  the  King  to  France  for  a 
writ  to  order  the  court  Christian  to  proceed.  Three  times 
he  appeared  in  the  latter  court.  Then  he  appealed  from 
that  court  to  the  Pope,  and  for  this  he  needed  the  King's 
license.  Finally  the  Pope  decided  in  his  favor.  Thereupon 
Richard  came  back  and  followed  the  King  until  two  justices 
were  sent  to  hear  his  case,  and  at  last  he  had  judgment. 
Everywhere  he  had  lawyers  in  his  pay.  His  friends  and 
advocates,  among  them  Glanville,  appeared  for  him  in  the 
secular  court.  In  the  ecclesiastical  courts  and  before  the 
Pope  he  hired  lawyers,  who  were  canonists,  some  of  them 
learned  Italians.  After  many  years  he  obtained  his  uncle's 
lands ;  but  by  that  time,  as  he  pathetically  writes,  he  had 
become  a  bankrupt. 

There  are  noted  names  among  the  king's  judges  in  this 
reign.  Richard  Lucy,  Henry  of  Essex,  William  Basset,  and 
Reginald  Warenne  were  among  the  judges  who  went  the 
circuit.  Roger  Bigot  and  Walter  Map,  the  satirist,  were  of 
the  itinerant  judges.  Ranulf  Glanville  and  the  three  famous 
clerks,  Richard  of  Ilchester,  John  of  Oxford,  and  Geoffrey 
Ridel,  sat  at  Westminster.  The  zeal  with  which  the  Norman 
barons  attended  to  their  judicial  duties  is  amazing.  The 
list  of  judges  is  almost  an  index  of  the  great  baronage. 
Marshalls,  Warennes,  Bigots,  Bohuns,  Bassets,  Lucys,  La- 
ceys,  Arundels,  Fitz  Herveys,  Mowbrays,  Ardens,  Bruces, 
de  Burghs,  Beaumonts,  Beauchamps,  Cantilupes,  Cliffords, 
Clintons,  Cobbehams,  de  Grays,  de  Spensers,  Fitz  Alans, 
de  Clares,  Berkeleys,  Marmions,  de  Quinceys,  Sackvilles  and 
Zouches  are  all  among  the  itinerant  judges. 

The  lawyers  of  this  reign  include  both  priests  and  laymen. 
Here  begin  the  Serjeants  at  law.  Of  the  thirteen  whom 
Pulling  ascribes  to  this  reign,  are  Geoffrey  Ridel  and  Hugh 
Murdac,  both  priests,  and  such  names  as  Reginald  Warenne, 
William  Fitz  Stephen,  William  Basset  and  Ranulf  Glanville, 
all  laymen.  It  is  a  matter  worthy  of  notice  that  the  date  at 


636  P.     BENCH   AND   BAR 

which  each  of  the  thirteen  serjeants  received  the  degrees  of 
the  coif  is  the  date  at  which  he  began  service  as  a  judge.  It 
is  probable  that  the  "  status  et  gradus  servientis  ad  legem," 
in  the  writ  calling  a  serjeant,  was  merely  a  nomination  of 
the  man  to  be  a  king's  justice.  The  matter  is  too  obscure 
to  admit  of  positive  statement.  But  there  must  have  been 
some  reason  for  the  rule  that  obtained  for  so  many  centuries, 
that  no  man  could  become  a  judge  until  he  had  been  called 
to  the  degree  of  serjeant. 

The  first  name  among  these  lawyers  is  Glanville's. 
Whether  he  wrote  our  first  law  book,  which  is  called  Glan- 
ville,  is  sharply  debated.  But  he  was  at  any  rate  a  great 
judge  with  considerable  legal  learning.  He  probably  re- 
ceived his  legal  training  in  the  exchequer.  But  he  was  no 
less  a  warrior.  As  sheriff  of  Yorkshire  he  gathered  an 
army  and  defeated  the  Scottish  King  and  took  him  prisoner. 
King  Henry  entrusted  to  Glanville  the  custody  of  his  wife, 
Elinor,  whom  he  guarded  for  sixteen  years.  When  in  1179 
most  of  the  King's  justices  were  removed,  Glanville  was  con- 
tinued in  office  and  took  his  place  in  the  court  at  West- 
minster. In  the  next  year  he  became  Chief  Justiciar. 
One  slanderous  story  of  his  judicial  conduct  has  come  down 
to  us,  but  it  is  no  more  than  idle  gossip.  Under  Richard 
the  Lion  Hearted,  Glanville  took  the  vow  of  a  crusader  and 
preceded  King  Richard  to  the  Holy  Land,  where  he  died 
under  the  walls  of  Acre. 

It  may  be  that  Glanville  did  not  write  the  book  that 
passes  under  his  name.  Perhaps  Hubert  Walter,  his  nephew, 
a  learned  civil  lawyer,  who  became  Archbishop  of  Canter- 
bury, put  it  together.  It  shows  traces  of  the  Roman  influ- 
ence, and  Glanville  was  no  partisan  of  Rome.  There  is  on 
record  a  writ  of  prohibition  issued  by  Glanville  against  the 
Abbot  of  Battle.  On  the  hearing  Glanville  said  to  the 
priests :  "  You  monks  turn  your  eyes  to  Rome  alone,  and 
Rome  will  one  day  destroy  you."  The  prophecy  came  true 
after  three  hundred  years. 

Far  more  noted  in  this  reign  is  the  name  of  Becket.  He 
was  a  trained  lawyer  educated  in  the  canon  and  the  civil 
law  at  Paris.  He  may  very  well  have  devised  some  of 


19.     ZANE:    THE   FIVE   AGES  637 

Henry's  statutes  upon  legal  procedure,  while  he  was  chan- 
cellor. In  the  struggle  that  went  oh  between  the  warring 
jurisdictions  of  courts  ecclesiastical  and  secular  courts,  he 
boldly  espoused  the  clerical  side.  The  Chief  Justiciar  be- 
fore Glanville,  Richard  Lucy,  drew  up  the  constitutions  of 
Clarendon,  which  defined  the  jurisdiction  of  the  king's  courts 
over  priests,  and  brought  on  the  struggle  between  Henry 
II.  and  Becket.  Lucy  was  twice  excommunicated  by  Becket, 
but  he  does  not  appear  to  have  been  seriously  affected;  yet, 
singularly  enough,  at  the  end  of  his  life,  he  founded  an 
abbey  and  assuming  the  cowl  of  a  monk  retired  to  the 
cloister  and  passed  his  remaining  years  in  the  works  of 
piety. 

The  King,  astute  lawyer  that  he  was,  fought  the  Arch- 
bishop with  the  very  best  weapons.  The  chronicler  records 
that  Henry  II.  kept  in  his  pay  a  gang  of  "  bellowing  leg- 
ists "  (ecclesiastical  lawyers)  whom  he  "  turned  loose  "  when- 
ever he  was  displeased  at  an  Episcopal  election.  In  his  con- 
troversy with  Becket,  Henry  used  the  expert  clerks,  John 
of  Oxford,  Richard  of  Ilchester,  and  Geoffrey  Ridel.  John 
received  as  his  reward  the  see  of  Norwich,  Geoffrey  was 
made  bishop  of  Ely.  Both  of  them,  priests  though  they 
were,  admirably  served  their  royal  client.  They  repre- 
sented the  King  upon  appeals  to  the  Pope.  Becket  used  a 
weapon  against  them  that  would  hardly  be  in  the  power  of 
a  modern  chancellor.  Both  lawyers  and  judges  were  excom- 
municated by  the  sainted  archbishop.  But  the  curse  of 
Heaven  and  the  reprobation  of  the  faithful  did  not  avail. 
At  last,  the  murder  of  Becket  ended  the  controversy,  and 
while  the  victory  remained  with  the  King,  it  gave  to  Becket 
the  peculiar  honor  of  being  one  of  the  only  two  English 
chancellors  who  are  numbered  as  saints  in  the  canon  of  the 
church. 

When  the  Conqueror  took  the  bishop  out  of  the  county 
court  and  established  church  tribunals  for  ecclesiastics  (a 
step  which  was  taken  at  the  demand  of  the  priests),  it  could 
not  have  been  foreseen  what  a  tremendous  influence  this  regu- 
lation would  exert  upon  the  history  of  English  law.  Yet  the 
struggle  which  soon  began  between  these  warring  jurisdic- 


638  V.    BENCH   AND   BAR 

tions  is  probably  the  real  reason  why  the  Roman  law  exerted 
so  little  influence  upon  the  common  law  or  its  procedure.  At 
Oxford  there  was  a  school  of  the  civil  and  the  canon  law. 
Ecclesiastics  educated  under  that  system  were  constantly 
filling  high  judicial  positions,  yet  these  men  were  all  faithful 
to  the  king's  courts  and  hostile  to  the  ecclesiastical  pro- 
cedure. Practically  all  the  trained  lawyers  were  priests, 
yet  they  uniformly  upheld  the  English  law.  In  after  times 
the  canon  law  was  to  mold  the  procedure  in  the  chancery 
courts;  but  the  secular  courts  were  not  affected.  No  doubt 
the  rational  conceptions  learned  by  these  ecclesiastical  law- 
yers from  the  civil  law  had  no  little  effect  upon  the  substance 
of  their  decisions;  but  the  Roman  law  never  affected  the 
secular  courts'  procedure. 

An  interesting  figure  among  clerical  judges  is  that  noted 
Abbot  Samson  of  St.  Edmund's  Bury,  who  was  made  one 
of  Henry  II. 's  justices.  The  priestly  chronicler  records 
with  pride  that  a  rich  suitor  cursed  a  court  where  neither 
gold  nor  silver  could  confound  an  adversary.  The  same 
chronicler  tells  us  that  Osbert  Fitz-Hervey,  a  serjeant  at  law, 
the  ancestor  of  the  Marquises  of  Bristol,  who  was  twenty- 
five  years  a  judge  at  Westminster,  said:  "That  abbot  is  a 
shrewd  fellow;  if  he  goes  on  as  he  begins,  he  will  cut  out 
every  lawyer  of  us."  In  a  case  where  the  Abbot  was  a 
party,  Jocelyn  says  that  five  of  the  assize  (jury)  came  to 
the  Abbot  to  learn  how  they  should  decide,  meaning  to  re- 
ceive money,  but  the  Abbot  would  promise  them  nothing, 
and  told  them  to  decide  according  to  their  consciences.  So 
they  went  away  in  great  wrath  and  found  a  verdict  against 
the  abbey.  The  juror  who  regards  his  place  as  an  opportu- 
-  nity  for  pecuniary  profit  seems  to  be  as  old  as  the  common 
law. 

The  intractability  of  the  academic  theorist  in  the  person 
of  Walter  Map,  the  celebrated  writer,  crops  out  in  his 
judicial  experience.  He  once  went  the  circuit,  but  was  not 
called  upon  the  second  time,  since  he  insisted  on  excepting 
from  his  oath  to  do  justice  to  all  men,  "  Jews  and  white 
monks,"  both  of  which  classes  he  detested.  So  he  went  back 
to  his  more  congenial  work  of  denouncing  the  whole  body 


19.     ZANE:    THE   FIVE    AGES  639 

of  the  clergy,  from  Pope  to  hedge  priest,  as  all  of  them  busy 
in  the  chase  for  gain.  But  while  that  work  is  forgotten, 
we  still  are  delighted  by  his  tales  of  King  Arthur  and  his 
knights  and  table  round. 

Under  Richard  and  John,  sons  of  Henry  II.,  the  regular 
enrolled  records  of  the  courts  begin.  Soon  two  sets  of 
records  are  developed,  those  of  the  regular  tribunal  sitting 
at  Westminster  and  those  made  in  the  presence  of  the  king. 
The  first  are  the  records  of  what  became  the  court  of 
Common  Pleas,  the  second  of  what  became  the  King's  Bench. 
In  John's  reign  and  that  of  his  son  Henry  III.  the  learned 
lay  lawyer  appears  in  increasing  numbers.  First  among 
them  is  Geoffrey  Fitz  Peter,  who  appears  in  the  famous  scene 
in  the  first  act  of  King  John,  where  the  Faulconbridge  in- 
heritance is  in  question.  Shakespeare  cites  the  oldest  Eng- 
lish case  on  the  orthodox  rule  of  the  English  law,  pater  quern 
nuptiae  demonstrant.  Chief  Justice  Hengham  in  the  next 
reign  cites  this  case  in  the  Year  Book.  It  is  needless  to"  say 
that  if  Shakespeare  had  had  the  legal  knowledge  which  has 
been  by  some  lawyers  ascribed  to  him,  he  could  never  have 
made  the  flagrant  errors  as  to  procedure  which  are  found 
in  King  John. 

Geoffrey  Fitz  Peter  was  the  son  of  an  itinerant  justice  of 
Henry  II. 's  reign,  who  had  well  upheld  the  dignity  of  civil 
justice  against  the  church  tribunals.  A  certain  canon  of 
Bedford  was  convicted  of  manslaughter  in  a  bishop's  court, 
and  was  sentenced  merely  to  pay  damages  to  the  relatives 
of  the  deceased.  In  open  court  the  judge  denounced  the 
canon  as  a  murderer;  the  priest  retorted  with  insulting 
words,  whereupon  the  King  ordered  the  priest  indicted.  Per- 
haps at  this  time  contempts  of  court  were  not  punished  by 
the  court  itself  in  a  summary  way.  Geoffrey  Fitz  Peter 
inherited  from  his  father,  the  judge,  large  possessions. 
With  his  wife  he  obtained  the  title  and  part  of  the  estates 
of  the  Mandeville  Earls  of  Essex.  He  was  a  learned  lawyer, 
if  we  may  believe  Matthew  Paris.  He  made  a  ruling  which 
probably  had  the  most  far-reaching  effect  of  any  judicial 
decision.  The  last  Mandeville  earl,  when  he  found  that  death 
was  approaching,  attempted  to  atone  for  a  somewhat  ora- 


640  V.     BENCH   AND   BAR 

gious  life  by  devising  a  large  portion  of  his  lands  to  the 
church.  Fitz  Peter  as  the  husband  of  one  of  the  co-heiresses 
was  directly  interested  in  the  case.  Yet  he  is  said  to  have 
ruled  that  a  will  of  lands  was  invalid.  From  that  day  to  the 
passage  of  the  Statute  of  Wills,  a  devise  of  lands  was  impos- 
sible, except  by  virtue  of  some  local  custom.  And  so  it  is 
to-day  that  the  realty  devolves  upon  the  heir,  the  personalty 
upon  the  executor.  Fitz  Peter  served  as  a  justice  itinerant; 
he  was  a  serjeant  at  law  and  upon  John's  accession  became 
Chief  Justiciar.  He  held  the  place  of  head  of  the  law  for 
fifteen  years,  and  with  Hubert  Walter,  the  chancellor,  was 
able  to  keep  King  John  under  some  restraint.  The  King  joy- 
fully exclaimed  when  he  heard  of  his  death :  "  He  has  gone 
to  join  Hubert  Walter  in  hell.  Now,  by  the  feet  of  God, 
I  am,  for  the  first  time,  king  and  lord  of  England."  John 
at  once  entered  upon  the  course  that  brought  him  into  con- 
flict with  his  baronage  and  ended  with  Magna  Charta. 

The  long  reign  of  John's  son,  Henry  III.,  may  fairly  be 
claimed  as  the  golden  age  of  the  common  law.  The  regular 
succession  of  the  judges  is  now  settled.  John  had  promised 
in  Magna  Charta  that  he  would  appoint  as  judges  only 
those  men  who  knew  the  law.  The  judges  whom  the  rolls 
show  as  sitting  at  Westminster  establish  the  character  of  the 
court.  The  judges  are  promoted  in  regular  order.  The 
head  of  the  court  during  the  first  years  of  this  reign  was 
William,  Earl  of  Arundel;  then  for  two  years  it  is  Robert 
de  Vere,  Earl  of  Oxford ;  then  for  seven  years  Pateshull, 
who  had  been  a  puisne,  was  head  of  the  court.  He  is  suc- 
ceeded by  Multon,  who  served  for  a  long  term.  Raleigh,  the 
second  man  in  the  court,  followed  Multon.  In  regular  order 
follow  Robert  de  Lexington,  Thurkelby,  Henry  de  Bath, 
Preston,  and  Littlebury.  Thus  it  appears  that  the  character 
of  this  court,  a  tribunal  filled  with  trained  lawyers,  has  be- 
come fully  established. 

The  Earl  of  Arundel,  who  was  Henry  III.'s  Chief  Jus- 
ticiar, belongs  to  a  legal  family  whose  successive  marriages 
with  other  great  legal  families  form  a  curious  study  in  his- 
tory. In  the  days  of  Henry  I.  a  certain  William  de  Albini 
was  the  son  of  the  king's  butler  or  pincerna.  He  married 


19.     ZANE:    THE    FIVE    AGES  641 

Queen  Adeliza,  the  young  widow  of  Henry  I.,  and  with  her 
obtained  the  castle  and  earldom  of  Arundel,  the  only  earl- 
dom by  tenure.  The  heiress  of  the  de  Albinis  in  the  time 
of  Henry  II.  married  the  son  of  John  Fitz  Alan,  a  judge 
in  the  king's  court,  and  thus  the  earldom  and  castle  of  Arun- 
del passed  to  the  Fitz  Alans.  Later,  in  the  time  of  Edward 
III.,  the  then  Earl  of  Arundel  by  marriage  acquired  the  title 
of  Earl  of  Surrey  and  the  estates  of  the  Norman  family  of 
Warenne,  whose  first  chief  was  the  companion  of  the  Con- 
queror and  one  of  his  chief  justiciars.  The  great  Earl  of 
Arundel,  who  went  to  the  block  in  Richard  II.'s  time,  was 
the  head  of  this  mighty  house.  Still  later  the  heiress  of  the 
Arundels  married  the  Howard  Duke  of  Norfolk.  Singularly 
enough  the  Howards  were  descended  from  William  Howard, 
a  celebrated  English  serjeant  at  law,  who,  when  the  Year 
Books  open,  was  in  large  practice  in  the  courts.  He  rose  to 
the  bench  (though  he  was  not,  as  his  tombstone  records, 
a  chief  justice).  His  descendant,  Sir  Robert  Howard,  mar- 
ried the  heiress  of  the  Mowbrays,  who  held  the  Earl  Marshal- 
ship  of  England  hereditary  in  the  Marshals.  The  sons  of 
the  great  regent  William  Marshal,  Earl  of  Pembroke,  dying 
without  male  heirs,  the  dignity  passed  by  marriage  to  the 
Bigots,  Earls  of  Norfolk.  From  them  by  a  special  deed  of 
the  lands  under  the  then  new  statute  De  Donis,  these  estates 
and  dignities  became  vested  in  Edward  I.'s  son,  Thomas  of 
Brotherton.  His  heiress  married  a  Mowbray  ;  the  heiress  of 
the  Mowbrays  married  Sir  Robert  Howard;  and  when  the 
Howards  obtained  by  marriage  the  titles  and  estates  of  the 
Arundel  family  in  the  reign  of  Elizabeth,  all  these  honors 
of  Warennes,  de  Albinis,  Fitz  Alans,  Plantagenets,  and  Mow- 
brays had  become  united  in  the  Howards.  Perhaps  we  may 
credit  this  remarkable  acquisitiveness  through  judicious  mar- 
riages to  the  legal  strain  in  the  Fitz  Alan  Howards.  Not 
only  the  Duke  of  Norfolk,  premier  peer-  of  England,  but  the 
Earl  of  Suffolk  and  Berkshire,  the  Earl  of  Effingham,  the 
Earl  of  Carlisle,  and  Lords  Howard  de  Walden  and  Howard 
of  Glossop,  thus  represent  to-day  the  serjeant  at  law  of  Ed- 
ward I.'s  reign. 

To  return  to  the  judges  of  Henry  III.'s  reign.     Two  of 


642  V.     BENCH   AND    BAR 

them,  Pateshull  and  Raleigh,  have  been  canonized  by  Brae- 
ton's  treatise.  Bracton  cites  these  two  judges'  decisions  al- 
most as  his  sole  authority.  Other  well-known  judges  of  the 
time  he  notices  merely  to  remark  that  they  committed  error, 
—  not  by  any  means  a  failing  confined  to  mediaeval  judges. 
The  greatest  of  these  lawyers,  Martin  de  Pateshull,  was  a 
priest,  —  as  was  indeed  Raleigh  also,  and  Bracton  himself. 
Pateshull's  origin  was  humble,  but  he  became  a  justice  itin- 
erant in  John's  reign  and  for  many  years  he  vigorously  per- 
formed his  duties.  One  of  his  brother  justices  in  a  letter 
to  the  King  plaintively  begs  to  be  excused  from  going  the 
York  circuit,  "  for,"  he  says,  "  the  said  Martin  is  strong 
and  in  his  labor  so  sedulous  and  practiced  that  all  his  fellows, 
especially  William  Raleigh,  and  the  writer,  are  overpowered 
by  the  work  of  Pateshull,  who  labors  every  day  from  sunrise 
until  night.''  The  Raleigh  just  spoken  of  was  Bracton's 
master.  He  managed  to  survive  Pateshull,  and  succeeded 
him  as  head  of  the  court.  He  first  served  as  Pateshull's 
clerk;  his  high  character  is  shown  by  his  election  over  the 
King's  uncle  to  the  rich  see  of  Winchester.  Raleigh  was 
ingenious  in  devising  many  new  writs,  and  his  name  is  of 
frequent  occurrence  in  the  Register  of  Writs. 

The  bravery  of  these  judges  in  the  performance  of  their 
duties  is  shown  by  a  characteristic  story.  Fawkes  de  Breaute, 
a  powerful  baron  and  noted  swashbuckler  of  the  time,  had 
so  oppressed  his  neighbors  that  they  proceeded  against  him 
in  the  king's  court.  Three  judges,  Pateshull,  Multon  and 
Braybroc,  went  up  from  London  to  try  the  cases  at  Dun- 
stable.  Thirty  verdicts  were  found  against  Fawkes  and  large 
fines  imposed  in  all  the  cases.  He  was  so  incensed  that  he 
sent  his  followers  under  his  brother's  leadership  to  seize  the 
judges.  He  captured  and  imprisoned  one  of  the  court;  but 
this  conduct  called  out  the  royal  power,  then  wielded  by 
Hubert  de  Burgh.  The  brother  and  thirty  of  Fawkes'  re- 
tainers were  hanged,  but  he  himself  escaped  to  lifelong 
exile. 

Other  judges  like  Hubert  de  Burgh,  Thomas  de  Multon, 
Hugh  Bigot,  Earl  of  Norfolk,  Humphrey  de  Bohun,  Earl 
of  Hereford,  must  be  passed  over.  But  Robert  de  Bruce 


19.     ZANE:    THE    FIVE    AGES  643 

deserves  more  than  a  passing  mention.  The  first  Robert 
de  Bruce  had  come  over  with  the  Conqueror  and  had  received 
ninety-four  lordships  as  his  share  of  the  spoil.  A  cadet  of 
the  house,  a  grandson  of  the  first  Robert,  had  gone  to  the 
court  of  the  Scottish  King  and  had  married  the  .heiress  of 
the  lordship  of  Annandale.  The  fourth  Robert  in  Scotland 
was  Robert  the  Noble,  lord  of  Annandale,  the  husband  of 
a  daughter  of  Prince  David  (the  Knight  of  the  Leopard  in 
Scott's  Talisman). 

The  fifth  Robert,  a  son  of  the  princess,  though  a  Scotch 
magnate,  was  educated  for  the  law  at  Oxford.  He  practiced 
in  Westminster  Hall.  He  became  Chief  Justice  and  held  the 
office  until  Henry  III.'s  death.  Edward  I.  passed  him  by, 
and  he  retired  in  disgust  to  Scotland.  But  when  the  daugh- 
ter of  Alexander  III.  of  Scotland  died,  the  heirs  to  the 
throne  were  the  descendants  of  Prince  David's  daughters. 
This  Robert,  the  Chief  Justice,  preferred  his  claim.  He 
argued  his  own  case  before  Edward  I.,  the  referee,  but  the 
decision  on  good  legal  grounds  was  given  for  John  Balliol. 
But  Robert's  grandson,  another  Robert,  the  national  hero 
of  Scotland,  made  good  his  title  at  Bannockburn. 

Other  judges  of  this  reign  are  interesting  figures,  —  like 
the  Percy,  whose  family  is  the  one  so  celebrated  in  ballad  and 
story  as  the  Percys  of  Northumberland,  or  like  Gilbert  Tal-. 
bot,  who  married  a  Welsh  princess,  and  whose  descendant 
was  the  stout  warrior  John  Talbot,  the  first  of  the  Earls  of 
Shrewsbury,  among  whose  descendants  appeared  Lord  Chan- 
cellor Talbot  in  the  reign  of  George  II.  But  the  real  lawyer 
of  this  reign  is  the  man  whom  we  know  as  Bracton.  His 
book  on  the  laws  and  customs  of  England  is  the  finest  pro- 
duction of  the  golden  age  of  the  common  law.  Bracton's 
father  was  vicar  of  the  church  at  Bratton,  of  which  Raleigh 
was  the  rector.  The  rector  took  an  interest  in  the  boy. 
There  is  a  tradition  that  he  put  him  to  school  at  Oxford. 
When  Raleigh  became  a  judge,  he  made  Bracton  a  clerk. 
In  due  time  Bracton  was  promoted  to  a  justiceship  in  eyre, 
when  he  became  in  1245  a  serjeant  at  law.  From  1245  to 
1265  he  traveled  the  circuit,  but  part  of  that  period  he  sat 
at  Westminster  with  Henry  de  Bath,  Thurkelby  and  Preston. 


644  V.    BENCH   AND   BAR 

During  this  time  he  made  a  large  collection  of  precedents 
(known  as  his  Note-Book)  out  of  the  decisions  of  Pateshull 
and  Raleigh.  A  fortunate  inference  by  Vinogradoff,  con- 
firmed by  the  lamented  Maitland,  has  identified  this  collec- 
tion of  precedents  with  a  manuscript  in  the  British  Museum, 
and  the  work  of  Bracton,  long  considered  a  mere  attempt 
to  apply  the  civil  law  to  our  common  law,  has  been  shown 
to  be  a  careful  statement  of  the  decisions  of  the  notable 
judges,  who  preceded  him. 

That  the  general  conceptions,  the  arrangement,  and  the 
classification  of  Bracton's  work  should  have  been  taken  from 
a  writer  on  the  civil  law  is  not  at  all  strange.  There  was 
no  other  source  to  consult.  The  Roman  and  the  canon  law 
had  been  taught  by  Vacarius  in  England,  and  he  had  written 
a  book  for  his  students.  Manuscripts  of  the  Roman  law 
no  doubt  were  brought  to  England.  The  flourishing  school 
"  utriusque  juris  "  at  Oxford  must  have  had  many  scholars. 
Ricardus  Anglicus,  an  Englishman,  gained  celebrity  in  the 
law  in  Italy.  Italian  lawyers  came  to  England,  and  the  King 
had  in  his  service  the  renowned  Hostiensis.  Simon  Norman- 
nus,  Odo  de  Kilkenny,  Roger  de  Cantilupe,  and  Alexander 
Saecularis  belonged  to  this  band  of  "  Romish  footed  "  legists 
of  the  King.  English  students  went  to  Bologna  and  studied 
under  Azo,  "  lord  of  all  the  lords  of  law."  Azo's  book 
Bracton  had  constantly  with  him  as  he  was  writing  his  "  De 
Legibus  et  Consuetudinibus  Angliae."  Yet  the  substance 
of  Bracton's  book  is  a  careful  statement  of  the  actual  law 
administered  by  the  courts.  A  priest  himself,  he  everywhere 
shows  his  loyalty  to  the  secular  tribunals.  Like  Henry  de 
Bath,  he  was  dismissed  from  the  king's  court  on  account  of 
his  leanings  toward  the  party  of  the  barons;  yet  he  con- 
tinued a  justice  in  eyre.  The  barons  at  one  time  sent  him 
on  a  judicial  errand  to  redress  grievances.  Perhaps  Bracton 
had  felt  the  rough  edge  of  the  King's  tongue.  We  are  told 
that  to  William  of  York,  a  distinguished  predecessor  of 
Bracton,  the  King  said :  "  I  raised  you  from  the  depths,  you 
were  the  scribbler  of  my  writs,  a  justice  and  a  hireling." 
Bracton  well  knew  the  great  patriot  Simon  de  Montfort, 
and  no  doubt  sympathized  with  his  cause.  We  know  not 


19.     ZANE:    THE   FIVE    AGES  645 

what  he  was  doing  when  the  Barons'  War  was  raging,  but 
it  is  probable  that  he  was  quietly  attending  to  his  judicial 
duties. 

In  Bracton's  book  we  find  that  the  rules  of  law  are  fixed 
and  settled.  They  bind  even  the  king.  The  sympathies  of 
Bracton  with  the  party  of  freedom  and  progress  here  and 
there  appear.  "  While  the  king  does  justice,"  says  Bracton, 
"  he  is  the  vicegerent  of  the  Eternal  King,  but  when  he 
declines  to  injustice,  he  is  the  minister  of  the  devil."  He 
had  a  noble  ideal  of  the  office  of  the  lawyer  and  the  judge. 
Using  the  phrase  of  the  Digest  he  says  of  his  profession, 
namque  justitiam  colimus  et  sacra  jura  ministramus,  "  We 
are  the  ministers  at  the  altar  of  justice  and  feed  its  sacred 
flame."  l 

The  greatness  of  Bracton's  work  is  best  proven  by  the 
reflection  that  five  centuries  were  to  pass  away  before  another 
English  lawyer,  in  the  person  of  Blackstone,  was  to  appear, 
competent  to  write  a  treatise  upon  the  whole  subject  of 
English  law.  Fortescue's  De  Laudibus  is  a  panegyric,'  Lit- 
tleton's Tenures  covers  a  small  field,  Coke's  Institutes  are 
so  poorly  arranged  and  badly  written  as  to  be  unfit  to  rank 
with  the  clear,  precise,  and  flowing  language  of  Bracton 
or  of  Blackstone. 

The  long  period  from  the  Conquest  in  1066  to  Bracton's 
death  in  1267  had  been  a  period  of  marvelous  growth.  It 
began  with  a  varied  assortment  of  local  courts  lacking  set- 
tled rules,  and  ends  with  a  highly  organized  system  of  courts 
administering  a  settled  and  rational  system  of  law.  It  begins 
with  a  barbarous  procedure,  and  ends  with  a  rationalized 
method  of  ascertaining  the  facts.  In  the  criminal  law  it 
begins  with  a  system  where  the  criminal  makes  redress  to  the 
injured  party  or  his  kin,  it  ends  in  a  direct  punishment  of 
crime  for  the  benefit  of  the  whole  society.  Succeeding  ages 
have  merely  amplified  and  glossed  the  distinctive  rules  of 
Bracton.  The  common  law  by  its  very  form  was  made  capa- 
ble of  indefinite  expansion. 

In  addition,  the  general  progression  of  the  justices,  hold- 

lfThe  above  free  translation  is  more  than  a  reminiscence  of  Cole- 
ridge's lines. 


646  V.    BENCH   AND   BAR 

ing  the  assizes  through  the  different  counties,  distributed  the 
royal  justice  throughout  the  country.  The  different  local 
tribunals  were  subjected  to  a  close  scrutiny.  In  fact,  the 
holding  of  an  eyre  was  regarded  by  the  inhabitants  rather 
as  an  oppressive  thing.  The  justices  inquired  into  all  the 
affairs  of  the  counties  and  into  all  the  acts  of  the  local 
tribunals,  into  the  enforcement  of  the  criminal  law  and  into 
the  judgments  rendered  in  civil  causes.  The  numerous  fines 
imposed  made  royal  justice  the  source  of  an  imposing  rev- 
enue. 

About  this  time  the  clergy  were  forbidden  by  the  Pope 
to  study  the  temporal  law,  and  were  inhibited  from  sitting 
in  lay  tribunals.  The  lawyer  ecclesiastics,  like  Raleigh, 
Pateshull,  William  of  York,  Robert  de  Lexington,  and  Brae- 
ton,  were  soon  to  pass  away.  While  ecclesiastical  chancel- 
lors remained  for  centuries,  the  common  law  was  about  to 
become  the  heritage  of  laymen.  The  lay  lawyers  are  learned 
men.  Fitz  Peter,  Segrave,  Braybroc,  Multon  and  Thur- 
kelby  are  all  cases  in  point.  But  the  most  noticeable  thing 
is  that  a  class  of  advocates,  who  practice  in  the  courts,  has 
grown  up,  and  that  the  judges  are  uniformly  selected  from 
among  the  profession.  The  Serjeants  at  law  and  the  appren- 
tices at  law  now  form  a  distinct  body  of  men,  devoting  them- 
selves solely  to  the  practice.  This  separate  class  needed  but 
schools  of  law  to  make  it  a  closed  body  of  men,  admission 
to  which  required  special  attainments.  This  want  was  soon 
to  be  supplied  by  the  Inns  of  Court,  where  the  common  law 
was  taught  as  at  a  university.  Everywhere  the  need  of 
retaining  good  lawyers  was  felt.  This  is  enforced  by  the 
judges.  In  one  of  the  first  Year  Books,  the  reporter  makes 
the  Chief  Justice  say :  "  B  loses  his  money  because  he  hadn't 
a  good  lawyer."  A  few  remarks  of  this  sort  from  the  bench 
would  soon  prevent  an  appearance  in  court  by  any  one  ex- 
cept a  trained  lawyer. 

The  division  of  the  profession  into  barristers  and  attor- 
neys had  already  appeared  —  a  distinction  that  endures  to 
our  own  day  in  England.1  The  barrister  appears  only  for 

1The  origin  of  this  distinction,  taking  us  back  to  the  more  primitive 
Germanic  ideas  and  the  contrast  between  an  attornatus  or  anwalt  and  a 


19.     ZANE:    THE   FIVE   AGES  647 

a  client  already  present  in  court  by  himself  or  by  an  attor- 
ney. The  effect  of  this  division  in  the  profession  may  be 
indicated  in  a  later  place.  At  present  it  is  enough  to  note 
the  influence  that  is  bound  to  be  exerted  by  the  body  of  pro- 
fessional lawyers.  Their  judgment  upon  legal  matters  is 
sure  to  be  of  controlling  importance,  and  their  influence  upon 
the  selection  of  judges  has  invariably  caused  in  England 
the  promotion  to  judgeships  of  men  who  have  proved  their 
ability  by  the  attainment  of  leadership  in  the  practice.  The 
great  advantage  of  appointive  judges  over  elective  is  that 
the  influence  of  professional  opinion  can  be  more  easily 
brought  to  bear  upon  the  appointing  power  than  upon  an 
untutored  electorate. 

But  the  growing  power  of  Parliament  was  making  itself 
felt  upon  the  growth  of  the  law.  Perhaps  the  conservatism 
of  the  profession  assisted.  It  was  now  no  longer  possible 
to  devise  new  writs  to  meet  new  conditions  and  to  offer  hew 
remedies.  Parliament  was  insisting  that  the  grant  of  new 
writs  and  the  creation  of  new  remedies  was  the  making  of 
new  laws,  a  power  which  belonged  to  the  nation's  represen- 
tatives in  Parliament.  Thus  the  growth  of  the  law  was  hin- 
dered by  the  growth  of  representative  government.  The 
English  law  is  now  ready  to  enter  upon  its  second  period, 
which  began  with  the  legislative  activity  of  Edward  I.'s 
reign. 

The  peculiar  feature  of  the  development  of  the  common 
law  is  that  its  moving  force  did  not  come  from  the  mass  of 
the  people,  but  was  imposed  upon  a  population  constantly 
demanding  a  return  to  old  and  barbarous  methods.  The 
universal  jurisdiction  of  the  king's  courts,  the  most  valu- 
able institution  in  the  history  of  the  law,  was  looked  upon 
with  the  greatest  jealousy.  The  extinction  of  the  old  or- 
deals —  a  measure  which  began  with  the  sneers  of  William 
Rufus  and  was  finished  under  John  —  was  not  demanded  by 

vorsprecher,  causidicus,  or  conteur,  has  been  once  for  all  set  forth  in 
Professor  Heinrich  Brunner's  essay  on  "Die  Zulassigkeit  der  Anwalt- 
schaft  im  franzosischen,  normannischen,  and  englifchen  Rechte  det 
Mittelalters"  first  printed  in  the  Zeitschrift  fur  vergleichende  Rechts- 
wissenschaft,  I,  321,  and  afterwards  abbreviated  in  §  100  of  his.  Deutsche 
Rechtsyeschichte  (1892,  vol.  II). 


648  V.     BENCH   AND   BAR 

any  large  portion  of  the  nation.  The  palladium  of  our 
liberties,  that  jury  which  grew  out  of  the  royal  inquisition, 
was  wholly  foreign  to  the  English  race,  and  was  imposed 
upon  the  nation  by  the  Norman  and  Angevin  kings.  The 
grand  jury  in  its  inception  was  to  most  of  the  people  little 
better  than  an  engine  of  royal  oppression. 

The  Norman  baronage  represents  the  element  of  power 
among  the  makers  of  this  jurisprudence.  In  spite  of  indi- 
vidual exceptions  who  were  cruel  and  oppressive,  the  mass  of 
the  Normans  insisted  upon  law  and  order.  They  demanded 
men  learned  in  the  law  for  judges,  and  insisted  that  the 
judges  should  be  independent  of  royal  dictation.  They 
asked  for  their  own  rights,  but  in  Magna  Charta  insisted 
upon  the  rights  of  their  humblest  followers.  In  the  years 
when  the  baronage  was  fighting  John  or  Henry  III.,  when 
civil  war  was  distracting  the  land,  practically  the  same 
judges  went  on  holding  court  at  Westminster,  uninfluenced 
by  the  varying  fortunes  of  barons  or  of  king.  Many  a  tale 
has  been  told  to  the  discredit  of  the  Normans;  the  jus 
primae  noctls  superstition  is  still  an  article  of  faith.  But 
the  legal  historian  knows  that  English  liberty  and  law,  even 
representative  government,  was  the  work  of  the  Norman. 
William,  Earl  of  Pembroke,  well  answered  the  king  in  the 
spirit  of  the  Norman  lawyer :  "  Nor  would  it  be  for  the 
king's  honor  that  I  should  submit  to  his  will  against  reason, 
whereby  I  should  rather  do  wrong  to  him  and  to  that  justice, 
which  he  is  bound  to  administer  towards  his  people;  and 
I  should  give  an  ill  example  to  all  men  in  deserting  justice 
and  right  in  compliance  with  his  mistaken  will.  For  this 
would  show  that  I  loved  my  worldly  wealth  better  than  jus- 
tice." It  was  not  until  the  Norman  baronage  was  broken  by 
the  wars  of  the  Roses  that  England  was  ready  to  submit  to 
the  tyranny  of  the  Yorkist  and  Tudor  sovereigns  —  a 
tyranny  that  found  its  support  in  the  mass  of  the  nation. 
And  when  the  struggle  was '  resumed  against  the  Stuart 
kings,  the  words  of  Bracton  and  of  William  of  Pembroke 
were  eagerly  cited  to  prove  that  the  king  himself  was  not 
above  the  law  of  the  land. 


19.     ZANE:    THE    FIVE   AGES  649 

II.     The  Silver  Age  of  the  Common  Law: 

From  the  Accession  of  Edward  I.  to  the  Death  of 

Edward  III.1 

The  succession  of  Edward  I.  in  1272  was  practically  con- 
temporaneous with  Bracton's  death  in  1268.  A  dictum  of 
Sir  William  Herle,  Chief  Justice  under  Edward  III.  (deliv- 
ered from  the  bench),  asserts  that,  "he  (Edward  I.)  was 
the  wisest  king  that  ever  was."  Hale  and  Blackstone  have 
repeated  this  language,  and  have  called  him  the  English 
Justinian.  But  Edward  was  no  codifier  or  founder  of  legal 
institutions.  He  simply  had  the  singular  good  judgment 
always  to  keep  at  hand  the  best  legal  advice,  and  to  follow 
it.  He  had  constantly  by  his  side  a  very  great  Italian 
lawyer,  Francis  of  Accursii.  His  closest  friend  was  his 
chancellor,  the  English  lawyer,  Robert  Burnel.2  The  lead- 
ing advocates  of  the  bar  were  kept  in  his  service.  Bur- 
nel drew  the  code  of  -laws  called  the  Statute  of  Wales, 
which  projected  the  English  law  over  Wales.  Chief  Justice 
Hengham  (whom  Coke  calls  Ingham)  drew  the  Stattlte  De 
Donis  and  the  provision  that  created  the  bill  of  exceptions. 
Other  noted  advocates  like  Inge,  Lowther,  and  Cave  drew 
the  other  well-known  statutes,  such  as  Quia  Emptores,  Cor- 
oners, Merchants,  etc.,  which  supplied  the  deficiencies  of  the 
existing  law  and  procedure. 

During  his  reign  the  reports  of  cases,  called  Year  Books, 
open.  There  was  for  centuries  a  tradition  that  the  Year 
Books  were  official.  Plowden  guardedly  says  that  he  had 
heard  that  four  reporters  were  originally  appointed  by  the 
king.  Bacon  is  somewhat  more  positive.  Coke  swallows  the 

1  General   references  for  this  period :    The  Year  Books  of  Horwood 
and  of  Pike;  Maitland's  Year  Books  of  Edward  II,  Selden  Society;  the 
Liber   Assisarum;   Maitland's   Conveyancer   in   the  Thirteenth   Century; 
Select  Pleas  in  Manorial  Courts  (Selden  Society)  ;  Placita  de  Quo  War- 
ranto;   Mirror  of  Magistrates    (Selden  Society);   Thayer's   Preliminary 
Treatise  on  Evidence;  Ames'  History  of  Assumpsit  (3  Harv.  L.  Rev.); 
Maitland's  Register  of  Writs  (3  Harv.  L.  Rev.)  ;  Baldwin's  Introduction 
to  his  edition  of  Britton;  Fleta;  Burke's  Dormant  and  Extinct  Peerages; 
Jenks'  Edward  I;  Pike's  History  of  Crime;  the  works  of  Foss,  Camp- 
bell  and  Stubbs;   Reeves'   History   of  English  Law  is  reliable  only  in 
regard  to  the  statute  book. 

2  The  last  English  Papal  bishop  who  left  a  family  of  acknowledged 
children. 


650  V.     BENCH    AND    BAR 

• 

tradition  entire,  and  says  that  "  four  discreet  and  learned 
professors  of  the  law  "  were  appointed  by  the  king.  He 
even  asserts  that  they  were  "  grave  and  sad  men."  Black- 
stone  knows  all  about  them,  who  they  were,  how  they  were 
paid,  and  how  often  the  reports  were  published.  But  this 
is  simply  a  growing  legal  myth.  The  reports  show  that  they 
were  not  official.  The  reporter  chooses  among  the  cases  as 
he  pleases.  Statements  of  well-known  counsel  are  inserted 
as  authority.  The  rulings  of  the  judges  are  frankly  criti- 
cized. One  decision  is  said  to  have  been  "  for  the  King's 
profit  rather  than  in  accordance  with  law."  In  another 
place  the  reporter  contemptuously  says  of  a  judge's  dictum: 
"  This  is  nothing  to  the  purpose."  Even  the  dicta  of  Chief 
Justice  Hengham  are  condemned  as  wrong.  Of  one  ruling 
the  reporter  says  that  the  court  held  the  contrary  at  the 
Michaelmas  term  (this  practice  the  courts  have  continued 
until  the  present  day).  The  reporter  makes  certain  judges 
say  that  a  decision  cited  was  obtained  by  favor  and  there- 
fore was  not  authority.  Finally,  the  reporter  nicknames  a 
precipitate  judge,  Hervey  the  Hasty.  It  is,  of  course,  ridic- 
ulous to  call  such  reports  official,  but  they  are  all  the  more 
valuable. 

The  Year  Books  show  us  the  legal  profession  in  full  bloom. 
The  leaders  of  the  bar  are  the  Serjeants,  but  they  have  not 
as  yet  a  monopoly  of  the  Common  Pleas  practice.  Other 
counsel  appear  in  the  reports.  There  is  the  body  of  students 
of  law,  attending  upon  the  courts ;  they  are  sometimes  re- 
ferred to  by  the  judges.  The  leaders  of  the  bar  are  few  in 
number,  but  the  weight  of  professional  opinion  is  apparent. 
The  reporter  does  not  hesitate  to  say  that  the  opinion  of 
the  serjeants  against  any  decision  is  sure  proof  that  it  is 
erroneous. 

The  very  fact  that  the  Year  Books  appear  shows  the 
influence  of  professional  opinion.  The  dry  Latin  records 
of  the  cases  were  sufficient  for  Bracton,  but  now  there  was 
a  demand  for  the  many  things  which  never  got  on  the  rec- 
ord,—  the  arguments  of  counsel,  the  remarks  of  the  judges 
during  argument,  the  skilful  plea  of  the  one  lawyer,  the 


19.     ZANE:    THE    FIVE    AGES  651 

adroit  shift  of  the  other,  in  fact,  the  whole  picture  of  the 
lawsuit  as  it  progressed. 

These  Year  Books  were  written  in  Norman  French,  the 
language  of  the  courts  and  lawyers.  One  of  the  manuscripts 
shows  us  what  was  probably  a  lawyer's  library  in  the  early 
thirteen  hundreds.  Besides  the  reports  of  cases,  it  contains 
a  number  of  statutes  of  Edward  I.  and  Edward  II.,  Brae- 
ton's  treatise,  another  treatise  on  quashing  writs,  another  on 
the  duties  of  justices,  another  on  pleas  of  the  crown,  Meting- 
ham's  work  on  Essoins,  and  Hengham's  treatise  called  Mag- 
num and  Parvum.  These  works,  with  Britton  and  the  Reg- 
ister of  Writs,  would  be  an  ample  legal  library;  and  all 
these  books  could  be  tied  together  in  one  manuscript  volume. 

The  influence  of  the  profession  is  apparent  in  the  legis- 
lative activity  of  the  opening  years  of  Edward  I.  The 
statutes  then  passed  were  all  remedial.  Wherever  a  case 
was  unprovided  for,  wherever  a  remedy  was  defective,  wher- 
ever the  law  seemed  insufficient,  the  existing  law  was  supple- 
mented by  statutes.  Take  the  statute  creating  the  bill  of 
exceptions.  It  enjoined  upon  the  trial  judge  the  duty  of 
sealing  a  bill  of  exceptions  tendered  to  any  of  his  rulings, 
and  made  the  bill  a  part  of  the  record,  which  could  b,e  exam- 
ined upon  error.  We  know,  without  any  proof  of  the  fact, 
that  this  statute  was  procured  by  professional  opinion.  It 
brought  all  rulings  to  the  supreme  test  of  an  appellate  tribu- 
nal. Henceforth  there  could  be  but  one  rule  of  law  for  all 
Englishmen.  The  fact  that  these  statutes,  such  as  West- 
minster II.  and  Westminster  III.,  are  still  law  in  almost  every 
state  in  this  Union,  is  the  best  proof  of  the  sagacity  of  those 
long  forgotten  lawyers  of  Edward's  reign.  Nowhere  is  bet- 
ter shown  the  wise  conservatism  of  the  true  lawyer,  whose 
instinct  is  not  to  commit  waste  upon  the  inheritance,  but  to 
repair  the  splendid  edifice  of  which  he  is  but  the  life  tenant. 

Still  another  indication  of  the  growing  influence  of  the 
profession  is  given  by  the  impeachment  of  all  the  judges 
before  Parliament  in  the  year  1289.  Some  of  the  judges 
impeached  bore  honored  names  in  the  profession.  Ralph 
de  Hengham,  Chief  Justice  of  the  King's  Bench,  upon  trivial 
charges  was  fined  in  a  small  sum,  dismissed  from  office,  and 


652  V.     BENCH   AND   BAR 

not  reinstated  until  ten  years  had  passed.  Weyland,  Chief 
Justice  of  the  Common  Bench,  after  a  prosperous  career 
as  a  lawyer  and  a  long  service  as  judge,  was  found  guilty 
of  heinous  offences  and  abjured  the  realm.  But  with  lawyer- 
like  skill  he  had  made  his  wife  and  children  co-foeffees  of  sev- 
eral of  his  manors,  which  were  not  forfeited.  Other  judges 
were  fined  in  large  amounts  ranging  from  4,000  to  2,000 
marks,  —  immense  sums,  when  we  reflect  that  a  Chief  Jus- 
tice's salary  was  then  but  forty  pounds.  Lovetot,  Rochester, 
and  Sadington  are  not  heard  of  again.  Boyland  busied  him- 
self in  building  a  splendid  mansion  and  left  a  large  fortune. 
Hopton  and  Saham  returned  to  the  practice.  It  will  be  seen 
that  only  after  a  bitter  experience  did  England  learn  the 
necessity  of  paying  large  salaries  to  judges. 

Two  judges  were  "  faithful  found  among  the  faithless," 
—  Elias  de  Beckingham  and  John  de  Metingham.  The  lat- 
ter was  promoted  to  the  headship  of  the  common  bench. 
There  he  presided  for  twelve  years.  His  memory  is  kept 
alive  by  the  prayer  directed  to  be  made  at  Cambridge  pro 
animo  Domini  John  de  Metingham,  as  one  of  the  benefactors 
of  the  University.  He  was  a  learned  and  just  judge.  His 
treatise  on  Essoins  was  a  valued  law  book.  He  in  one  of 
his  opinions  cites  Porphyrius  to  a  definition  of  surplusage, 
as  something  "  which  may  be  present  or  absent  without  detri- 
ment to  the  subject."  Once  he  ruled  against  the  opinion 
of  all  the  Serjeants,  putting  his  decision  on  the  ground  of 
convenience.  In  another  case  he  ruled  in  Mutford's  favor, 
and  the  gratified  counsel  burst  forth  with  a  quotation  from 
Holy  Writ :  "  Blessed  is  the  womb  that  bare  thee."  In 
another  case  he  patiently  listened  to  many  objections  to  a 
verdict  and  then  dryly  said :  "  Now  it  is  our  turn,"  and  made 
short  work  of  the  objections.  A  counsel,  not  a  serjeant, 
who  had  pleaded  badly  and  lost  his  client's  case,  he  addresses 
pityingly  as  "  My  poor  friend,"  and  explains  to  him  his 
hopeless  error.  Metingham  in  another  case  thought  it  no 
objection  to  a  verdict  that  the  prevailing  party  had  enter- 
tained the  jury  at  a  tavern.  We  are  reminded  that  the 
jury  has  hardly  as  yet  attained  a  judicial  function. 

Hengham   came  back   to   the  bench   as   the   successor   of 


19.     ZANE:    THE    F/FE    AGES  653 

Metingham.  He  was  also  a  legal  author.  His  treatise  was 
a  work  on  the  method  of  conducting  actions,  divided  into 
Magnum  and  Parvum.  His  predecessor  in  the  King's  Bench, 
Thornton,  had  written  an  abridgment  of  Bracton.  Britton 
and  Fleta  belong  very  close  to  this  period,  and  it  is  plain 
that  there  was  a  demand  for  law  books.  Hengham  is  a  great 
authority  on  writs,  and  issues  instructions  to  the  clerks  from 
the  bench.  He  sometimes  delivers  long  dicta,  but  the  re- 
porter adds  in  one  case  that  Hengham  is  wrong.  He  was 
firm  with  the  lawyers.  In  one  case  he  said  to  Friskeney  and 
his  associates :  "  We  forbid  you  to  speak  further  of  that 
averment  on  pain  of  suspension,"  and,  adds  the  reporter, 
"  they  obeyed."  Sometimes  Hengham  lost  his  judicial  poise, 
as  when  he  says  to  pertinacious  counsel :  "  Leave  off  your 
noise,  and  deliver  yourself  from  this  account."  One  of  his 
rebukes  is  on  a  much  higher  plane.  To  a  lawyer  who  offered 
a  plausible  but  unsound  argument  Hengham  said :  "  That 
is  a  sophistry,  and  this  place  is  designed  for  truth." 

But  the  greatest  character  on  the  bench  is  William  de 
Bereford,  who  succeeded  Hengham  as  Chief  Justice  of  the 
Common  Bench.  He  served  thirty-four  years  as  a  judge. 
We  can  sit  in  court  and  hear  Bereford's  oaths,  "  By  God  " 
and  "  By  Saint  Peter."  He  says  to  an  absurd  plea :  "  In 
God's  name,  now,  this  is  good !  "  One  day  he  was  sitting 
with  Mutford  and  Stonor,  associate  judges.  Stonor  held 
a  lively  debate  with  counsel.  Mutford  then  said :  "  Some 
of  you  have  said  a  good  deal  that  runs  counter  to  what  has 
hitherto  been  accepted  as  law."  "  Yes,"  interjected  Bere- 
ford, "  that  is  very  true  and  I  won't  say  who  they  are." 
The  reporter  naively  adds,  "  Some  thought  he  meant  Stonor." 
Bereford  is  sometimes  cutting  to  counsel :  "  We  wish  to 
know,"  he  once  exclaimed,  "  whether  you  have  anything  else 
to  say,  for  as  yet  you  have  done  nothing  but  wrangle  and 
chatter."  One  day  Serjeant  Westcote  disputed  Bereford's 
law:  "Really,"  Bereford  sarcastically  rejoined,  "I  am 
much  obliged  to  you  for  the  challenge,  not  for  the  sake 
of  us  who  sit  on  the  bench,  but  for  the  sake  of  the 
young  men  who  are  here."  He  despised  the  ridiculous 
Anglo-Saxon  wager  of  law.  "  Now  God  forbid,"  he 


654  V.    BENCH   AND   BAR 

says  from  the  bench,  **  that  any  one  should  get  to  his 
law  about  a  matter  of  which  the  jury  can  take  cognizance, 
so  that  with  a  dozen  or  a  half  dozen  rascals,  he  could  swear 
an  honest  man  out  of  his  goods."  He  even  corrects  in  open 
court  statements  of  his  fellow  judges  as  to  the  law.  One 
day  he  corrects  a  ruling  of  Hervey  the  Hasty  in  spite  of 
that  judge's  protests.  He  is  sharp  with  the  lawyers.  To 
Malberthorpe,  counsel  in  great  practice,  he  says :  "  You 
talk  at  random."  To  Passeley,  a  leader  of  the  bar,  he  says 
in  an  action  to  quiet  title :  "  There  are  forty  fools  here  who 
think  that,  as  soon  as  one  has  in  such  case  acknowledged, 
there  is  nothing  more  to  do,  although  he  claims  more  than 
he  has.  Answer  by  what  title  you  claim  in  fee."  He  some- 
times jokes  from  the  bench.  The  law  was  that  a  villein  who 
had  gone  to  a  city  and  remained  there  for  a  year  became 
free,  but  Metingham  had  ruled  that  if  the  villein  returned 
to  his  villein  tenement  again  he  lost  his  freedom.  Bereford 
illustrates  this  point  by  a  joke.  "  I  have  heard  tell  of  a 
man  who  was  taken  in  a  brothel  and  hanged,  and  if  he  had 
stayed  at  home,  it  would  not  have  happened.  So  here,  if  he 
was  a  free  citizen,  why  didn't  he  remain  in  the  city?  "  Some 
of  Bereford's  jokes  are  too  broad  for  quotation.  Even  if 
the  reporters  were  "  grave  and  sad  men,"  as  Coke  says,  they 
always  record  Bereford's  highly  seasoned  anecdotes  with 
apparent  zest. 

Hervey  de  Staunton,  who  is  called  the  Hasty,  is  quick 
to  answer.  Mutford,  a  leader  of  the  bar,  asserted  that  a 
female  serf  who  became  free  by  marrying  a  free  man,  re- 
turned to  her  servile  status  as  soon  as  her  husband  died. 
"  That  is  false,"  said  one  judge.  "  Worse  than  false,  it  is 
a  heresy,"  added  Staunton.  In  another  case  a  younger  law- 
yer was  reproved  by  Staunton  for  a  poor  plea,  and  was  told 
to  go  and  seek  advice  of  counsel.  Instead  of  being  angry, 
the  lawyer  went  out  and  came  back  with  two  eminent  counsel, 
Willoughby  and  Estrange.  But  this  is  the  ordinary  thing. 
Whenever  an  attorney  or  a  young  lawyer  attempts  to  plead 
without  a  serjeant,  he  is  quickly  detected  in  an  error  and 
told  to  go  out  and  get  counsel.  On  the  circuit  Staunton  is 
reproved  by  his  fellow  judges  for  making  a  ruling  before 


19.     ZANE:    THE    FIVE   AGES  655 

he  consulted  them.  The  retorts  of  the  judges  are  quick 
enough.  "  Why,"  asks  Asseby,  "  did  the  other  side  plead 
that  they  were  seized  ?  "  "  Because  they  are  rather  f  oolish," 
said  Hertford,  Justice,  shortly,  "  answer  over."  Berewick, 
a  judge,  says  to  the  great  Howard:  "If  you  wish  to  cite 
a  case,  cite  one  in  point."  One  almost  forgets  in  reading 
this  that  he  is  back  in  the  Middle  Ages.  Sometimes  a  lawyer 
is  fined  for  contempt.  Lisle  paid  a  fine  of  100  shillings,  yet 
soon  afterward  was  made  a  justice  of  assize. 

The  most  striking  phenomenon  is  the  smallness  of  the  bar 
in  active  practice.  A  few  names  are  constantly  recurring. 
The  fees  of  a  leader  must  have  been  enormous.  Most  of 
them  died  rich.  The  case  of  William  Howard,  from  whom 
flows  "  all  the  blood  of  all  the  Howards,"  has  been  already 
instanced  in  describing  the  first  period.  Another  great 
lawyer,  a  rival  of  Howard's,  is  Hugh  de  Lowther.  He  is 
king's  serjeant,  and  appears  in  quo  warranto  proceedings, 
which  Howard  often  defends.  He  was  of  an  ancient  family 
in  Westmoreland.  His  lineal  descendant  became  Viscount 
Lonsdale  in  1689,  and  Lowther  Castle  (where  the  present 
Earl  of  Lonsdale  so  magnificently  entertained  the  German 
Emperor)  stands  in  the  midst  of  the  widespread  domain  of 
35,000  acres  which  Edward  I.'s  attorney-general  left  to  his 
descendants. 

The  largest  fee  of  that  day  paid  to  a  lawyer  was  £133  6s. 
8d.,  paid  by  Edward  II.  to  Herle,  the  king's  serjeant,  and 
this  was  supplemented  by  a  seat  on  the  bench.  After  a 
long  service  on  the  bench  Herle  was  permitted  to  retire; 
and  it  may  be  of  interest  to  note  that  the  permission  spoke 
of  "  his  approved  fidelity,  the  solidity  of  his  judgment,  the 
gravity  of  his  manner,  and  his  unwearied  service  in  his 
office." 

One  of  the  names  that  often  recurs  is  that  of  John  Stonor. 
As  a  serjeant  in  large  practice,  and  then  as  king's  serjeant, 
he  no  doubt  made  a  fortune.  He  first  served  in  the  Common 
Pleas,  then  in  the  King's  Bench,  then  he  was  returned  to 
the  Common  Pleas.  Later  he  was  chief  Baron  of  the 
Exchequer,  then  Chief  Justice  of  the  Common  Pleas,  super- 
seding Herle ;  but  later  Herle  was  reinstated,  and  Stonor 


656  F.     BENCH   AND   BAR 

• 
took  second  place,  but  became  Chief  Justice  again.     Such 

is  the  remarkable  record  of  this  judicial  maid-of-all-work. 
The  one  decision  for  which  he  is  noted  is  a  holding  that  an 
act  of  Parliament  was  invalid. 

Throughout  the  Year  Books  of  the  three  Edwards,  it  is 
noticeable  that  the  judges  are  uniformly  selected  from  the 
leaders  of  the  bar.  If  a  serjeant  appears  in  large  practice, 
he  is  almost  certain  to  appear  later  on  the  bench.  So 
noticeable  is  this  that  there  are  few  great  lawyers  who  do  not 
reach  a  judicial  position.  Simon  de  Trewithosa  was  evi- 
dently a  Cornishman.  He  was  in  immense  practice,  was  a 
serjeant  at  law,  but  was  never  a  judge.  His  statements 
of  law  are  found  in  the  Year  Books  quoted  as  of  evident 
value.  Another  lawyer  named  Pole  did  not  reach  the  bench. 
His  practice  was  very  large,  and  the  singular  fact  is  that 
he  was  not  made  even  a  serjeant  at  law.  But  such  names 
as  Howard,  Lowther,  Heyham,  Hertford,  Inge,  Herle, 
Estrange,  Westcote,  Warrick,  Passeley,  Lisle,  Touthby,  Wil- 
loughby,  Malberthorpe,  Mutford,  the  two  Scropes,  Friske- 
ney,  Scotre  and  many  others,  show  that  professional  emi- 
nence found  a  sure  reward  in  a  judgeship.  No  lawyer  is 
elevated  to  the  higher  courts  who  is  not  a  counsel  in  large 
practice. 

The  judges  are  no  respecters  of  persons.  Magnate  and 
serf  are  equal  before  the  law.  Beauchamp,  Earl  of  War- 
wick, pleading  his  own  case  and  showing  considerable  tech- 
nical knowledge,  is  treated  like  an  ordinary  counsel.  Roger 
Bigot,  Earl  of  Norfolk  and  Earl  Marshal,  son-in-law  of  the 
King,  receives  the  same  treatment  as  the  humblest  suitor. 
A  poor  man  wrongly  seized  as  a  villein  is  given  £100  dam- 
ages, a  verdict  equal  to  ten  thousand  dollars  at  the  present 
day.  Yet  we  see  the  law's  delay,  for  four  years  elapsed 
between  the  awarding  of  the  venire  and  the  verdict. 

The  judges  are  skilful,  tactful  men.  In  a  case  where  the 
plaintiffs  failed  in  detinue  of  a  charter  on  a  variance,  Bere- 
wick,  the  justice,  said  to  the  defendant:  "What  will  this 
avail  you?  they  can  bring  a  new  action  and  get  it,  so  you 
may  as  well  give  it  up,"  and  the  charter  was  surrendered.  In 
another  case  Howard  has  reached  a  difficult  place  and  refuses 


19.     ZANE:    THE   FIVE    AGES  657 

to  plead,  but  Berewick,  the  judge,  calls  up  the  client,  takes 
him  away  from  his  counsel,  and  questions  him  so  as  to  get 
replies  which  are  taken  as  pleadings.  Pleading  was  at  that 
day  a  voluntary  act.  A  criminal  trial  showed  one  of  these 
judges  at  his  best.  Hugh,  a  man  of  importance,  is  arraigned 
upon  an  indictment  for  rape.  He  asked  for  counsel.  "  You 
ought  to  know,"  the  Judge  replies,  "  that  the  king  is  party 
here  ex  officio,  and  you  cannot  have  counsel  against  him, 
though  if  the  woman  appealed  you,  you  could."  The  pris- 
oner's counsel  were  then  ordered  to  withdraw  and  did  so. 
Hugh  was  then  called  upon  to  plead.  Hugh  replied  that  he 
was  a  clerk  (a  priest),  and  ought  not  to  answer  without  his 
bishop.  Then  he  was  claimed  for  the  bishop  as  a  clerk.  Thus 
it  appears  that  the  bishop  had  his  representative  sitting  in 
court  ready  to  claim  the  trial  of  any  one  who  said  he  was  a 
clerk.  But  the  Judge  was  evidently  informed,  for  he  replied: 
"  You  have  lost  your  clergy,  because  you  married  a  widow." 
Under  the  statute  De  Bigamis  a  priest  who  had  married  twice 
or  had  married  a  widow  lost  his  right  to  be  tried  in  the 
ecclesiastical  court.  "  Answer,"  said  the  Judge,  "  whether 
she  was  a  widow  or  a  virgin,  and  be  careful,  for  I  can  call 
upon  the  jury  here  to  verify  your  statement."  We  note  that 
a  jury  is  sitting  in  court  ready  to  decide,  by  the  knowledge  of 
its  members,  controverted  questions  of  fact.  Hugh  replies: 
"  She  was  a  virgin  when  I  married  her."  The  Judge  calls 
upon  the  jury,  who  say  that  she  was  a  widow.  Then  the 
Judge  rules  that  he  must  answer  as  a  layman,  and  asks  him 
to  consent  to  a  jury  trial.  It  is  noticeable  that  the  defendant 
in  a  criminal  case  must  consent  to  a  jury,  a  reminiscence  of 
which  is  the  question,  and  the  answer  of  the  prisoner,  for  cen- 
turies to  come :  "  How  will  you  be  tried  ?  "  "  By  God  and  my 
country,"  i.  e.  by  the  jury.  But  the  prisoner  objected  that 
he  was  accused  by  the  jury.  (It  is  curious  to  note  that  the 
same  jurymen  acted  as  grand  and  petty  jurors.)  He  further 
claimed  that  he  was  a  knight,  and  the  prisoner  added :  "  I 
ought  to  be  tried  by  my  peers."  The  Judge  gave  him  a  jury 
of  knights,  who  were  called,  and  the  defendant  was  asked  if 
he  had  any  challenges.  But  Hugh  still  refused  to  consent  to 
a  jury  trial,  and  the  Judge  warned  him  of  close  confinement 


658  V.    BENCH   AND   BAR 

on  bread  and  water,  if  he  did  not  consent.  So  Hugh  con- 
sented, and  asked  that  his  challenges  be  heard.  The  Justice: 
"  Freely,  read  them."  Then  Hugh  makes  a  slip :  "  I  don't 
know  how  to  read."  The  Justice :  "  How  is  this,  you  claim 
the  privilege  of  clergy,  and  don't  know  how  to  read  ?  "  Then 
the  prisoner  stands  much  confused;  but  the  Judge  calls  on 
a  bystander  to  read  the  challenges  to  the  prisoner,  who 
speaks  them.  The  challenged  jurors  are  excused.  Then  the 
judge  states  the  charge  to  the  jury  and  the  jury  say  that 
the  woman  was  ravished  by  Hugh's  men.  The  Justice :  "  Did 
Hugh  consent?"  The  jury:  "No."  The  Justice:  "Did 
the  woman  consent?"  The  jury:  "  She  did,"  and  there- 
upon Hugh  was  acquitted.  But  who  can  say  whether  he  was 
acquitted  because  the  woman  consented,  and  yet  would  have 
"been  considered  liable  criminally  for  the  acts  of  his  servants? 

The  counsel,  however  eminent,  cannot  wheedle  the  judges. 
In  one  case,  Howard  and  Lowther  on  the  same  side  urged  a 
certain  form  of  judgment.  To  Howard,  Berewick  replied: 
"  We  tell  you  that  you  never  saw  any  other  judgment  under 
these  circumstances,  and  you  will  get  no  other  judgment 
with  us."  Then  Lowther  argued  with  the  Court,  but  Bere- 
wick was  firm:  "  You  will  get  no  other  judgment  from  us." 
Again,  Howard  is  on  the  bench,  and  Asseby  says :  "  I  think 
you  would  not  give  judgment  in  this  wise,  if  you  were  in  the 
case,"  but  Howard  mildly  replies :  "  I  think  you  are  wrong, 
wherefore  answer."  But  sometimes  indulgence  is  shown.  To 
a  count  challenged  as  bad,  the  Court  say :  "  It  would  have 
been  formal  to  have  done  this,  but  we  will  forgive  him  this 
time ;  but  let  everyone  take  care  in  the  future,  for  whoever 
shall  count  in  this  manner,  his  writ  shall  abate,  for  it  behooves 
us  to  maintain  our  ancient  forms." 

In  those  days  the  counsel  stated  the  proposed  pleadings 
orally,  and  if  held  good  by  the  Court  they  were  reduced  to 
legal  form  by  the  clerks.  To  the  present  day  our  pleadings 
still  speak  as  if  the  party  were  in  open  court  stating  his 
pleadings.  At  this  earlier  stage  of  the  common  law  the 
pleadings  were  necessarily  all  true.  Whenever  counsel 
in  his  pleading  reaches  a  point  as  to  which  he  is  not  advised, 
he  imparls  and  seeks  his  client  or  the  attorney  for  further 


19.     ZANE:    THE    FIVE    AGES  659 

information.  The  advocates  show  acuteness  and  ingenuity. 
The  pleading  is  technically  correct.  All  pleas  must  follow  in 
their  regular  order,  —  pleas  in  abatement  before  pleas  to  the 
merits  ;  there  was,  however,  no  such  rule  as  (for  example)  that 
the  judgment  upon  a  plea  in  abatement  was  quod  recuperet. 
At  this  sensible  stage  of  the  law  there  was  no  need  for  statutes 
to  allow  pleading  over.  Sometimes  counsel  get  stubborn 
and  refuse  to  plead  further,  and  then  say  that  they  will  do 
so  merely  to  oblige  the  court.  Touthby,  a  very  good  lawyer, 
in  one  case  tries  to  plead  without  binding  his  client,  Isolde. 
"  I  say  for  Gilbert  de  Touthby  but  not  for  Isolde,"  he  begins. 
Whenever  the  pleadings  come  to  a  point  where  the  party 
whose  turn  it  is  to  plead  cannot  deny  or  avoid,  judgment  is 
given  at  once.  The  clerks  enter  up  the  technical  forms  of 
pleadings.  The  glorious  absque  hoc  is  present  in  large  num- 
bers. In  an  action  of  assault  the  counsel  says  orally,  in  an- 
swer to  a  justification:  "  He  took  him  of  malice  and  not  as 
he  has  said,  ready,  etc."  The  clerk  enters  this  up  as  the  reg- 
ular replication  de  injuria  sua  propria  absque  tali  causa,  etc. 

In  almost  every  case  there  are  two  counsel  on  each  side. 
In  some,  cases  there  is  a  great  array.  Thus  Heyham,  Hert- 
ford, Howard,  and  Inge  are  for  the  defendant  and  Lisle  and 
Lowther  for  the  plaintiff.  No  one  seems  to  lead,  but  all 
speak.  Sometimes  different  counsel  appear  at  different  terms. 
In  a  great  case  of  replevin,  Estrange,  Scrope,  and  Westcote 
are  for  the  defendant  and  Herle  and  Hertepol  for  the  plain- 
tiff at  one  time.  At  the  next  term  Westcote  and  Huntingdon 
are  for  the  defendant  and  Herle  and  Hertepol  for  the 
plaintiff.  At  the  next  term  Westcote  and  Huntingdon  are 
for  the  defendant,  while  the  plaintiff  has  Kyngesham,  War- 
rick,  and  Passeley.  The  lawyers  who  are  practicing  at 
Westminster  are  also  found  on  the  circuit  at  the  assizes. 
These  men  must  have  kept  in  mind  an  enormous  amount  of 
procedural  rules.  There  were  four  hundred  and  seventy-one 
different  original  writs,  each  showing  a  different  form  of 
action  and  requiring  its  own  special  procedure. 

The  useful  law  book  was  Britton,  a  sort  of  epitome  of 
Bracton.  Chief  Justice  Prisot  in  Henry  VI.'s  time  said  that 
Britton  was  written  under  the  orders  of  Edward  I.,  and  fixes 


660  V.    BENCH   AND   BAR 

its  date  as  1275.  It  supplanted  Bracton,  so  that  judges  in 
after  ages  would  say  with  singular  fatuity  that  Bracton  was 
never  accepted  as  an  authority  in  English  law.  Certainly 
Bracton's  Roman  law  was  not  understood  by  his  immediate 
successors;  for  in  Britton  the  actio  familiae  herciscundae 
of  the  Roman  law  has  become  an  action  about  the  lady  of 
Hertescombe,  who  probably  had  estates  in  Devonshire.  Yet 
Passeley,  one  of  these  lawyers,  was  a  civilian,  for  the  judge 
says  to  him  from  the  bench :  "  Passeley,  you  are  a  legist,  and 
there  is  a  written  law  that  speaks  of  this  subject,"  quoting 
from  the  Code. 

It  is  noteworthy  that  no  complaints  are  heard  of  the 
practitioners  in  the  higher  courts.  There  is  a  single  case 
of  a  lawyer  being  bribed  by  the  opposing  counsel.  But  the 
leading  lawyers  were  faithful  and  zealous.  Even  against 
the  king  they  fought  well  for  their  clients.  Both  Edward  I. 
and  Edward  III.  made  determined  assaults  upon  the  private 
jurisdictions  of  various  lordships,  and  in  all  the  cases  the 
defendant's  counsel  was  zealous  against  the  king.  But  in 
the  lower  courts,  municipal,  local  and  seigniorial,  the  legal 
"  shyster  "  was  as  brazen  and  disgraceful  as  he  is  to-day.  In 
1280  the  mayor  and  aldermen  of  London  lamented  the  igno- 
rance and  ill  manners  of  the  pleaders  and  attorneys,  who 
practiced  in  the  city  courts.  It  was  ordained  that  no  advo- 
cate should  be  an  attorney ;  and  thus  it  is  apparent  that  the 
separation  of  the  two  branches  of  the  profession,  which 
happily  endured  in  England,  was  at  that  early  time  in  full 
effect.  The  city  fathers  were  compelled  to  threaten  with 
suspension  the  pleader  who  took  money  from  both  sides  or 
reviled  his  antagonist. 

There  is  an  occurrence  in  the  Abbot  of  Ramsey's  court 
for  the  fair  at  St.  Ives,  which  shows  the  local  pettifogger 
at  his  worst.  William  of  Bolton  is  the  name  of  the 
"  shyster."  He  was  lurking  around  the  fair,  looking  for 
victims.  Simon  Blake  of  Bury  was  charged  with  using 
a  false  ell  for  measuring  cloth.  William,  eager  for  busi- 
ness, rushed  in  and  became  surety  for  Simon's  appearance. 
Then  to  make  certain  of  his  fee  he  induced  Simon's  friend 
John  Goldsmith  to  retain  him  to  defend  Simon,  and  to 


19.     ZANE:    THE    FIVE    AGES  661 

promise  him  four  shillings  as  a  fee.  William  agreed  to 
defend,  provided  Simon  would  swear  that  he  got  the  false  ell 
from  a  merchant  of  Rouen.  Although  Simon  did  so  state 
and  vouched  the  Rouen  merchant  to  warranty,  yet  he  with- 
drew his  voucher  of  the  Rouen  merchant.  The  scheme,  of 
course,  was  to  fleece  the  rich  foreign  merchant;  but  Simon 
lost  heart  or  was  bought  off.  Then  William  had  the  effront- 
ery to  sue  John  Goldsmith  for  the  four  shillings  retainer 
and  ten  pounds  damages  because  John  had  induced  Simon 
to  withdraw  the  said  voucher  of  the  said  merchant  of  Rouen, 
"  out  of  whom,"  William  brazenly  avers,  "  the  said  William 
had  hoped  to  get  a  large  sum  of  money."  The  damages 
arose  because  the  pettifogger  was  deprived  of  an  oppor- 
tunity for  levying  blackmail.  Surely  William  was  thrown 
away  on  that  early  time.  He  belonged  to  the  "  justice  shop  '* 
of  one  of  our  large  cities. 

The  evils  of  these  local  courts  are  manifest.  In  one  case 
Bereford  asks  Malberthorpe,  "  Why  did  you  not  plead  this 
exception  in  the  county  court  ?  "  "  Because,"  replied  the 
counsel,  "  we  thought  it  would  have  more  chance  before  you 
than  in  that  court."  In  the  same  year  Margery  brought  a 
writ  of  false  judgment  against  the  suitors  of  the  court 
baron  of  Fulk  Fitz  Warin,  lord  of  the  manor,  for  failing  to 
record  her  plea  against  Fulk  in  his  own  court.  The  suitors 
appeared  in  the  king's  court  before  Bereford  to  answer  the 
writ.  Bereford,  Justice :  "  Good  people,  Margery  brings 
her  writ,  etc.  What  have  you  to  say?  "  Heydon,  retained 
for  the  suitors :  "  I  will  tell  you  all  about  the  business." 
Bereford :  "  You  shall  not  say  a  word  about  it,  but  they  out 
of  their  own  mouths  shall  record  it."  The  suitors  then  said 
that  they  feared  to  record  the  woman's  plea  out  of  fear  of 
Fulk,  who  had  beaten  one  of  them  and  overawed  them  by 
force,  so  that  they  were  compelled  to  come  to  the  king's 
court  under  protection.  Bereford :  "  Go  aside  by  your- 
selves and  take  a  clerk  with  you  and  have  him  write  down 
your  record,  taking  care  that  Robert  Heydon  comes  not 
near  you."  Bereford  was  determined  to  get  at  the  exact 
truth  and  that  the  suitors  should  make  their  record  without 
the  aid  of  counsel.  The  record  made,  Bereford  issued  a  writ 


V.     BENCH    AND    BAR 


against  Fulk.  The  king  was  far  wiser  than  his  subjects 
when  he  attempted  by  his  writs  of  quo  warranto  to  destroy 
these  local  courts. 

The  greatest  lawsuit  of  this  reign  was  not  tried  in  any 
of  the  regular  courts ;  for  the  Kingdom  of  Scotland  was  at 
stake,  and  the  litigants  were  the  claimants  of  the  throne.  The 
contestants  referred  the  matter  to  the  arbitration  of  Edward 
I.  But  Edward  at  once  set  his  lawyers  at  work  to  devise 
by  means  of  this  arbitration  some  method  by  which  he  could 
extend  his  sovereignty  over  Scotland.  Burnel,  the  chancellor, 
and  Roger  le  Brabazon,  a  skilled  lawyer  and  one  of  the  puisne 
judges  of  the  King's  Bench,  prepared  the  case.  Out  of  the 
records  and  the  monkish  chronicles,  acts  of  fealty  by  former 
Scottish  sovereigns  were  produced,  especially  that  of  William 
the  Lion  to  Henry  II.  after  his  capture  by  Ranulf  Glanville. 
They  were  careful  to  suppress  Richard  Coeur  de  Lion's  can- 
cellation of  his  rights  over  Scotland  for  a  large  sum  of 
money.  Soon  a  parliament  of  English  and  Scotch  was  con- 
vened at  Berwick.  Brabazon  opened  the  proceedings  by  a 
speech  in  which  he  adduced  his  proofs,  and  required,  as  a 
preliminary,  that  the  contestants  and  all  the  Scotch  swear 
fealty  to  Edward  as  their  feudal  suzerain.  The  contestants 
of  course  could  not  offend  the  court.  The  Scottish  nobles 
murmured,  but  after  seeing  Brabazon's  proofs  acquiesced. 
The  Scottish  commons,  however,  refused.  A  trial  was  then 
had,  and  Burnel,  for  the  King,  correctly  adjudged  the  throne 
to  Balliol.  Then  the  King  tried  to  extend  the  jurisdiction  of 
his  courts  over  Scotland.  But  Wallace,  and  afterwards 
Robert  the  Bruce,  kept  alive  the  resistance,  until  under 
Edward  II.  the  crushing  defeat  of  the  English  at  Bannock- 
burn  ruined  Edward  I.'s  dream  of  a  kingdom  of  Great 
Britain.  Brabazon,  as  Chief  Justice  of  the  King's  Bench, 
lived  to  see  the  fugitives  from  Bannockburn. 

One  of  the  results  of  the  years  of  warfare  was  to  scatter 
over  England  lawless  characters  called  trailbaston  men.  To 
suppress  these  marauders  special  justices,  fearless  knights 
and  barons,  were  sent  throughout  England.  One  of  these 
justices  in  33  Edward  I.  was  John  de  By  run,  a  lineal  descend- 
ant of  the  Norman  Ralph  de  Burun  of  the  Domesday  survey. . 


19.     ZANE:    THE   FIVE    AGES  663 

In  regular  descent  from  the  justice  came  Sir  John  Byron, 
the  devoted  adherent  of  Charles  I.,  who  was  made  Lord 
Byron.  His  descendant,  the  sixth  Lord  Byron,  was  the  poet, 
who  next  to  Shakespeare  has  been  the  greatest  intellectual 
force  in  English  literary  history.  Byron's  friend,  the  poet 
Shelley,  was  descended  from  William  Shelley,  a  justice  of  the 
Common  Pleas  under  Henry  VIII.  Even  Shakespeare  belongs 
on  his  mother's  side  to  the  Nornian  Ardens,  who  furnished  at 
least  three  justices  under  the  Plantagenets ;  while  Francis 
Beaumont,  the  collaborator  of  Fletcher,  was  the  son  and 
grandson  of  English  judges  belonging  to  the  Norman 
Beaumonts. 

The  troubles  of  Edward  II's  reign  had  little  effect  on  the 
courts.  Malberthorpe,  Chief  Justice  of  the  King's  Bench, 
pronounced  sentence  of  death  on  the  Earl  of  Lancaster. 
When  Edward  II.  was  seized  by  his  wife  Isabella  and  her 
paramour  Roger  Mortimer,  and  put  to  death,  Malberthorpe 
was  brought  to  trial,  for  his  judgment  against  the  Earl  of 
Lancaster ;  but  he  proved  by  prelates  and  peers  the  fact  that 
he  gave  that  judgment  by  command  of  the  King,  whom  he 
dared  not  disobey.  Such  is  the  disgraceful  entry  upon  his 
pardon.  But  Malberthorpe  was  removed  and  went  back  to 
the  practice.  We  pass  by  the  two  Scropes;  Bourchier,  who 
founded  a  distinguished  family ;  and  Cantebrig,  who  gave 
most  of  his  property  to  endow  that  great  institution  which 
is  now  Corpus  Christi  at  Cambridge.  They  were  all  great 
lawyers. 

The  most  celebrated  lawyer  of  Edward  III.'s  reign,  how- 
ever, was  Robert  Parning.  The  Year  Books  show  him  to  be 
a  man  of  remarkable  erudition.  He  came  to  the  Common 
Pleas  as  a  judge  at  a  rather  early  age.  In  a  remarkable 
case  Parning  is  sitting  with  Stojior,  Shareshulle  and*  Shar- 
delowe.  He  takes  issue  with  Shareshulle  and  a  great  debate 
is  held  between  the  judges  on  the  bench,  which  is  accurately 
reported.  In  the  end  Parning  was  overruled,  but  a  few 
months  later  he  became  Chief  Justice  of  the  King's  Bench 
and  then  Chancellor. 

This  is  the  first  instance  of  a  great  common  lawyer  attain- 
ing the  marble  chair.  By  reference  to  the  Register,  it  will 


664  V.    BENCH   AND   BAR 

be  found  that  in  his  two  years'  service  he  provided  a  number 
of  new  remedies.  Had  the  chancellors  continued  to  be  pro- 
fessors of  the  common  law,  there  would  have  been  no  separate 
chancery  system.  But  after  Parning's  death  the  chancellor- 
ship was  again  bestowed  upon  an  ecclesiastic.  The  growing 
opposition  to  the  church  is  shown,  however,  by  the  Commons' 
petition  to  the  king  in  1371  that  only  laymen  should  be 
appointed  to  the  higher  offices.  Thereupon  Robert  de 
Thorpe,  Chief  Justice  of  the  Common  Pleas,  was  made 
chancellor.  On  his  death  John-  Knivet,  Chief  Justice  of  the 
King's  Bench,  succeeded  to  the  head  of  the  chancery ;  but 
he  remained  for  only  five  years,  when  the  office  was  given  to 
an  ecclesiastic.  No  other  layman  held  the  office  until  Sir 
Thomas  More.  It  is  interesting  to  note  that  Parning,  after 
he  became  chancellor,  would  return  to  sit  in  the  law  courts, 
and  in  1370  there  is  the  following  entry  in  the  Year  Book: 
"  Et  puis  Knivet  le  chanc.  vyent  en  le  place,  et  le  case  lui 
fuit  monstre  par  les  justices  et  il  assenty"  l 

Some  of  the  happenings  of  the  time  give  us  some  light 
on  contemporary  manners.  Chief  Justice  Willoughby  in. 
1331  was  captured  by  outlaws  and  compelled  to  pay  a  ran- 
som of  ninety  marks,  —  more  than  one  year's  salary.  Seton, 
a  judge  under  Edward  III.,  sued  a  woman  who  called  him  in 
his  court  "  traitor,  felon  and  robber."  The  inference  is 
that  he  had  decided  a  case  against  the  lady,  but  had  not 
impressed  her  with  the  correctness  of  his  decision.  He 
recovered  damages,  but  he  was  given  a  jury  of  his  peers, 
that  is,  a  jury  of  lawyers.  The  quaint  simplicity  of  those 
times  is  shown  by  Thorpe  and  Green,  two  judges,  going  in 
state  to  the  House  of  Lords  and  asking  them  what  was  meant 
by  a  statute  lately  passed.  It  would  not  occur  to  our  judges 

1 "  And  then  Knivet  the  Chancellor  came  into  the  court  and  the  case 
was  explained  to  him  by  the  judges  and  he  concurred." 

The  words  of  the  last  entry  show  that  knowledge  of  French  is  passing 
away.  About  this  time  was  passed  the  statute  which  required  all 
pleadings  and  judgments  in  the  courts  to  be  couched  in  English.  But 
the  lawyers  calmly  ignored  the  statute  until  the  middle  of  the  seventeen 
hundreds.  The  reporter  of  Edward  II.'s  Year  Book  was  a  much  better 
French  scholar  than  the  men  who  reported  tinder  Edward  III.  Serjeant 
Maynard  said  that  Richard  de  Winchester  reported  under  Edward  II. 
but  he  tells  us  no  fact  in  regard  to  him,  and  the  name  nowhere  else 
appears. 


19.     ZANE:    THE    FIVE    AGES  665 

to  seek  for  such  an  explanation  of  an  absurd  law.  Green 
once  pronounced  judgment  against  the  Bishop  of  Ely  for 
harboring  one  of  the  latter's  men  who  had  committed  arson 
and  murder.  For  this  judgment  the  Judge  was  cited  before 
the  Pope,  and  on  his  refusal  to  appear  he  was  excommuni- 
cated. About  this  time  there  was  considerable  friction 
between  the  lawyers,  called  "  gentz  de  ley,"  and  the  church- 
men, called  "  gentz  de  Sainte  Eglise."  The  "  gents  of  law  " 
probably  instigated  the  petition  that  only  laymen  should  be 
chosen  to  hold  such  offices  as  chancellor.  But  in  the  next 
Parliament  the  "  gents  of  Holy  Church  "  retorted  by  obtain- 
ing a  petition  from  Parliament  praying  that  henceforth 
"  gentz  de  ley,"  practicing  in  the  king's  courts,  who  made 
the  Parliament  a  mere  convenience  for  transacting  the  affairs 
of  their  clients,  to  the  neglect  of  public  business,  should  no 
longer  be  eligible  as  knights  of  the  shire.  It  is  likely  that 
the  real  ground  of  hostility  to  the  church  was  its  great 
possessions.  Just  as  to-day  the  mass  of  people  look  with 
hatred  and  envy  upon  the  possessors  of  great  fortunes,  so 
then  many  people  turned  to  the  broad  lands  of  the  church 
for  relief  against  the  taxation  growing  out  of  the  French 
wars. 

But  the  reign  of  Edward  III.  produced  a  ministerial 
ecclesiastic  worthy  to  rank  with  Lanfranc,  Flambard,  Roger 
of  Salisbury,  and  Robert  Burnel.  The  career  of  William  of 
Wykeham  is  one  of  the  glories  of  the  English  church.  Of 
humble  birth,  educated  at  Winchester,  he  attracted  the  atten- 
tion of  the  bishop,  who  employed  Wykeham's  truly  wonderful 
architectural  talents  in  the  improvements  of  Winchester 
cathedral.  Here  he  took  the  clerical  tonsure.  A  little  later 
he  entered  the  service  of  the  king,  and  at  Windsor,  on  the 
site  of  an  old  fortress  of  William  the  Conqueror,  he  built 
the  keep  and  battlemented  towers,  which  are  yet  the  noblest 
portion  of  one  of  the  magnificent  royal  residences  of  the 
world.  He  was  rapidly  advanced  to  the  bishopric  of  Win- 
chester and  the  chancellorship.  His  declining  years  were 
taken  up  with  the  foundation  of  Winchester  School,  and  with 
the  far  greater  endowment  of  his  college  of  St.  Mary  at 
Oxford,  now  called  New  College.  Wykeham's  foundation 


666  V.     BENCH   AND   BAR 

still  renders  it  a  wealthy  institution.  After  the  lapse  of  five 
hundred  years  the  buildings  remain  as  they  were  designed  by 
this  greatest  of  art-loving  prelates.1 

It  is  sad  to  turn  to  the  closing  years  of  the  king,  whose 
reign  began  with  the  triumph  of  Cressy.  He  had  had  a  long 
and  in  many  ways  glorious  reign.  His  court  had  been  the 
most  splendid  in  Europe.  The  pageantry  of  knighthood  had 
thrown  its  glamour  over  his  reign.  The  spoil  of  France  had 
enriched  his  people.  But  the  ravages  of  the  plague  had 
almost  ruined  the  nation.  In  the  domain  of  law  the 
prospect  was  dark.  The  king's  mistress,  Alice  Ferrers, 
openly  intrigued  to  influence  tke  court's  decision.  She  caused 
a  general  ordinance  against  women  attempting  the  practice 
of  the  law.  The  heavy  fees  charged  for  writs  in  the  chancery 
were  the  cause  of  bitter  complaint.  The  royal  council  was 
accusing  men  and  trying  them  without  indictment.  Justice 
was  delayed  by  royal  writs.  The  very  judges  of  the  land,  it 
was  charged,  condescended  to  accept  robes  and  fees  from 
the  great  lords.  One  judge  was  convicted  of  taking  bribes 
in  criminal  cases.  The  inefficacy  of  appeals  was  a  crying 
evil,  and  it  was  complained  that  the  judges  heard  appeals 
against  their  own  decisions.  All  these  various  evils  were  to 
cause  a  grim  reckoning  in  the  next  reign.  But  here  we 
must  close  the  period  which  began  with  the  legislation  of 
Edward  I.  and  ended  in  such  ignominy  with  his  grandson's 
death  in  1377. 

III.     The  Bronze  Age  of  the  Common  Law: 
From  the  Death  of  Edward  III.  to  the  Death  of  Littleton  2 

The  period  in  legal  history  that  reaches  from  the  death  of 
Edward  III.,  in  1377,  to  the  death  of  Littleton  in  1481,  may 

1  New  College  is  equalled  by  Merton  at  Oxford,  founded  by  Walter 
de  Merton,  Henry  III.'s  chancellor.  Its  exquisite  chapel  and  noble  hall 
are  the  work  of  that  chancellor.  Even  Christ  Church,  which  was  long 
the  most  splendid  college  foundation  in  the  world,  is  the  work  of  Henry 
VIII.'s  chancellor,  Cardinal  Wolsey.  Magdalen,  too,  the  loveliest  of 
them  all,  is  the  work  of  William  o'f  Waynflete,  "the  right  trusty  and 
well  beloved  clerk  and  chancellor "  of  Henry  VI.  To  these  may  be 
added  Wadham  at  Oxford,  founded  from  the  estate  left  by  a  celebrated 
English  judge,  and  Corpus  Christi  at  Cambridge. 

1  The  Year  Books  for  this  period  must  lie  read  in  the  Norman 
French  (so  called).  Bellewe's  Reports  are  Richard  II.'s  Year  Books  so 


19.     ZANE:    THE    FIVE    AGES  667 

be  called  the  age  of  bronze,  on  account  of  the  efforts  which 
the  law  was  making  to  mold  itself  to  fit  new  conditions. 
The  amplification  of  the  action  of  trespass,  the  invention  of 
common  recoveries,  the  dawning  action  of  ejectment,  were 
phenomena  that  characterize  this  age.  The  common  law 
was  showing  little  indication  of  its  coming  helplessness  in  the 
next  age,  when  the  developed  jury  system  was  to  render  it 
incapable  of  granting  any  relief  but  a  sum  of  money  or  the 
recovery  of  specific  real  or  personal  property.  And  in  the 
realm  of  constitutional  law  this  Lancastrian  age  reached 
higher  ground  than  the  law  was  to  again  occupy  for  two 
hundred  years. 

The  reign  of  Richard  II.  opens  with  a  frightful  tragedy. 
The  effects  of  the  great  plague  in  1349,  the  unrest  caused 
by  the  repressive  statutes,  the  insistence  of  the  landholders 
upon  the  villein-services,  and  the  growth  of  the  renting 
system,  resulted  in  a  widening  chasm  between  farmer  and 
laborer,  which  culminated  in  Wat  Tyler's  rebellion.  The 
populace  rose  over  England,  and  mobs  marched  on  London. 
The  demand  was  that  all  serfdom  be  abolished,  and  that  all 
vellein  services  and  rentals  be  commuted  for  four  pence  per 
acre.  In  London  the  mob  burst  into  the  Tower  and  murdered 
the  chancellor,  Archbishop  Sudbury,  one  of  the  greatest 
scholars  of  his  time.  But  the  bitterness  was  deepest  against 
the  lawyers,  on  account  of  the  parchment  records  and  the 
actions  that  had  forced  many  a  villein  to  perform  his  serv- 
ices. The  Temple,  the  new  school  of  the  lawyers,  was 
sacked  and  its  records  destroyed.  In  Shakespeare's  Henry 
VI.',  Dick  the  Butcher  cries :  "  The  first  thing  we  do,  let's 

far  as  printed.  Stubbs,  Campbell  and  Foss  are,  of  course,  necessary 
reading.  Further  general  references  are:  Select  Cases  in  Chancery 
(Selden  Society),  Wambaugh's  edition  of  Littleton's  Tenures,  Plummer's 
Introduction  to  Fortescue's  Monarchy,  Lord  Clermont's  Fortescue's  De 
Laudibus,  Pulling's  Order  of  the  Coif,  Herbert's  Antiquities  of  the  Inns 
of  Court,  Pierce's  Inns  of  Court,  Douthwaite's  Gray's  Inn,  Loftie's  Inns 
of  Court  and  Chancery,  Dillon's  Laws  and  Jurisprudence,  Kerly's 
Equitable  Jurisdiction,  Ames'  History  of  Assumpsit,  Thayer's  Prelimi- 
nary Treatise,  Wigmore  on  Evidence.  Ames'  Xotes  to  De  Laudibus  may 
be  read  in  addition.  Reeves  now  becomes  more  reliable.  Dugdale's 
Origines  Juridiciales  has  much  curious  information.  Walsingham's 
Chronicle  is  valuable.  Mr.  Holdsworth  is  to  write  on  The  Legal  Profes- 
sion in  the  14th  and  15th  centuries,  in  the  Law  Quarterly  Review  for 
1907. 


668  V.     BENCH   AND    BAR 

kill  all  the  lawyers."  Cade :  "  Nay,  that  I  mean  to  do.  Is 
not  this  a  lamentable  thing,  that  of  the  skin  of  an  innocent 
lamb  should  be  made  parchment;  that  parchment  being 
scribbled  o'er  should  undo  a  man."  It  is,  perhaps,  needless 
to  say  that  Shakespeare  is  here  completely  astray  in  chro- 
nology, for  this  hatred  of  lawyers  belongs  to  the  revolt  of 
Wat  Tyler  in  1381,  not  to  Cade's  rebellion  in  1450. 

Out  in  Suffolk  was  living  the  venerable  Chief  Justice 
Cavendish.  The  mob  attacked  his  domain,  and  finding  the 
Chief  Justice,  they  dragged  him  forth,  gave  him  a  mock 
trial,  and  then  beheaded  him.  This  fine  old  lawyer  was  from 
the  Norman  house  of  De  Gernum.  Under  the  name  Candish 
he  was  in  immense  practice  in  the  Year  Books  of  Edward 
III.,  along  with  Belknap,  Charlton,  and  Knivet.  After  serv- 
ing as  a  puisne  in  the  Common  Pleas  he  became  Chief  Justice 
of  the  King's  Bench.  One  of  his  dicta  from  the  bench  is  a 
gallant  utterance  upon  the  appearance  of  women :  "  II  n'ad 
nul  home  en  Engleterre,"  he  says  in  barbarous  French,  "  que 
puy  adjudge  a  droit  deins  age  ou  de  plein  age,  car  ascun 
femes  qwe  sont  de  age  xxx  ans  voilent  apperer  de  age  de 
xviii."  l  When  he  was  murdered  he  had  just  been  made 
Chancellor  of  the  University  of  Cambridge,  after  a  service 
on  the  bench  for  over  ten  years,  with  a  great  reputation  for 
learning  and  fair  dealing.  His  descendants  in  the  elder  line 
were  Earls  of  Devonshire,  now  Dukes  of  Devonshire.  An- 
other descendant  in  the  younger  line  was  the  celebrated 
commander  in  the  Civil  War,  who  became  Marquis  and  Duke 
of  Newcastle;  but  the  estates  of  this  line  now  belong  to  the 
Dukes  of  Portland,  who  are  Cavendish-Bentincks. 

The  successor  of  Chief  Justice  Cavendish  was  Robert 
Tresilian.  He  had  sat  as  Cavendish's  only  puisne;  and 
when  he  held  the  assizes  after  Wat  Tyler's  rebellion,  he  made 
a  record  that  was  never  equaled  until  Jeffreys  held  the 
"  Bloody  Assizes  "  after  Monmouth's  rebellion.  Later  in 
the  reign  of  Richard  II.,  Tresilian  became  involved  in  the 
political  troubles.  Parliament  had  practically  supplanted 

1 "  There  is  no  man  in  England  who  can  tell  whether  she  is  within  age 
or  of  full  age,  for  some  women  who  are  thirty  years  old  will  appear  to 
be  only  eighteen." 


19.     ZANE:    THE    FIVE    AGES  669 

the  King,  by  appointing  eleven  commissioners  to  administer 
the  government.  The  King  at  first  tried  to  elect  a  more 
favorable  parliament.  When  the  election  proved  unfavor- 
able, Tresilian  called  the  judges  together,  among  them  Bel- 
knap,  Chief  Justice  of  the  Common  Pleas,  Fulthorpe,  Burgh, 
and  Holt  (Skipwith  excused  himself),  and  by  violent  threats 
induced  the  judges  to  sign  a  series  of  prepared  answers, 
holding  the  act  of  Parliament  invalid.  Poor  Belknap  as 
he  signed  the  paper  said :  "  Now  here  lacketh  nothing  but 
a  rope,  that  I  may  receive  a  reward  worthie  for  my  desert." 
This  is  an  early  instance  of  a  practice  that  became  common 
under  the  Stuarts,  and  was  put  into  use  as  late  as  1792  by 
Lord  Eldon ;  while  it  has  often  been  used  in  some  of  our 
States.  Fulthorpe,  one  of  the  judges,  at  once  communicated 
the  matter  to  Parliament.  The  judges  were  appealed  of  high 
treason.  Tresilian  was  beheaded,  and  the  other  judges  were 
banished.  Belknap  had  been  a  great  advocate  and  an  excel- 
lent judge ;  but  he  lacked  courage,  for  in  1381  when  he  went 
the  circuit,  the  rioters  broke  up  his  court  and  made  him 
swear  to  hold  no  more  sessions.  His  banishment  caused  a 
very  remarkable  ruling.  Gascoigne  held  that  Belknap's 
wife  could  be  sued  as  a  feme  sole,  although  her  husband 
was  living.  The  decision  was  certainly  wrong.  Chief  Justice 
Markham  at  a  later  time  made  a  rhymed  couplet  over  this 
decision : 

Ecce  modo  mirum,  quod  femina  fert  breve  regis 
Non  nominando  virum,  conjunctum  robore  legis.1 

Belknap  was  allowed  to  return,  the  judgment  against  him 
was  reversed,  and  his  property  that  had  not  been  alienated 
was  restored. 

The  year  1388,  when  the  judges  were  banished,  was,  of 
course,  marked  by  a  total  change  in  the  courts,  —  the  first 
instance  in  English  history  when  the  whole  bench  was 
changed  for  political  reasons.  Even  in  1399,  when  Henry 
of  Bolingbroke  supplanted  Richard  II.  and  the  reigning  king 

x'Tis  a  marvel  indeed  that  a  wife  brings  her  writ, 

Not  joining  her  husband,  as  law  maketh  fit. 

But  the  learned  Markham  was  mistaken.  The  wife  did  not  bring  the 
writ;  she  was  made  defendant. 


670  V.    BENCH   AND   BAR 

was  compelled  to  sign  an  abdication,  there  was  no  change  in 
the  judiciary.  The  whole  proceeding  was  in  strict  legal 
form,  for  Chief  Justice  Thirning  yielded  up  the  fealty, 
homage,  and  allegiance  of  all  the  English  people,  declared 
the  King  deposed,  and  announced  Henry  IV.  to  be  his  suc- 
cessor. The  deposition  took  place  in  the  midst  of  a  splendid 
pageant  in  Westminster  Hall.  The  Hall  had  just  been 
remodeled  in  the  last  two  years  of  the  King's  reign.  The 
Chancellor's  court  and  the  King's  Bench,  toward  the  end  of 
Edward  III.'s  reign,  had  joined  the  Common  Pleas  in  the 
Hall.  King  Richard,  who  had  a  keen  appreciation  of  archi- 
tectural beauty,  had  restored  and  remodeled  the  Hall  after 
designs  by  William  of  Wykeham.  The  walls  were  built 
higher,  the  pillars  in  the  hall  were  removed,  and  the  magnif- 
icent timber  roof,  still  one  of  the  wonders  of  architecture, 
was  thrown  over  the  wide  hall.  Sadly  enough,  the  first  use 
made  of  the  King's  structure,  after  he  had  rendered  it  so 
imposing,  was  the  coronation  of  his  usurping  kinsman, 
Henry  IV. 

Revolutions  or  changes  in  dynasty  in  England  have  rarely 
affected  the  courts.  The  two  Chief  Justices  and  their  col- 
leagues continued  to  sit  in  the  courts  after  the  new  King's 
accession.  One  judge,  Rickhill,  was  called  upon  to  answer 
for  a  share  in  the  murder  of  the  late  King's  uncle,  the  Duke 
of  Gloucester,  while  in  prison  at  Calais.  But  Rickhill 
proved  that  he  had  no  part  in  the  murder,  and  was  allowed 
to  resume  his  seat  upon  the  bench.  This  judge,  in  attempt- 
ing to  draw  his  own  deed,  made  some  memorable  law,  which  is 
still  common  learning.  By  his  deed  he  attempted  to  antici- 
pate the  law  by  two  centuries,  and  to  settle  his  lands  upon 
his  sons  successively  in  tail,  but  added  a  contingent  limitation 
that  if  any  son  aliened  in  fee  or  in  tail,  the  same  lands  should 
go  over  to  the  next  son  in  tail.  The  contingent  limitation 
was  held  bad  as  the  creation  of  a  remainder,  which  did  not 
await  the  natural  devolution  of  the  preceding  estate,  but 
cut  it  short  by  the  creation  of  a  freehold  beginning  in  futuro. 
English  law  was  to  await  the  Statute  of  Uses  before  such  a 
limitation  became  good  in  a  deed,  and  the  Statute  of  Wills 
before  it  became  possible  by  will. 


19.     ZANE:    THE    FIVE    AGES  671 

Clopton,  Chief  Justice  of  the  King's  Bench,  vacated  his 
seat  to  become  a  friar  of  the  Minorites,  and  his  successor 
was  the  celebrated  William  Gascoigne,  whose  surname  the 
ingenious  scribes  of  that  day  were  able  to  spell  in  twenty-one 
different  ways.  The  legend  as  to  his  firmness  in  committing 
the  Prince  of  Wales  for  contempt  of  court  is  wholly  myth- 
ical; but  it  is  true  that  when,  in  1405,  he  was  commanded  by 
the  king  to  pronounce  sentence  of  death  upon  Archbishop 
Scrope  and  the  Earl  Marshal,  rebels  taken  in  battle,  he  reso- 
lutely refused,  saying:  "Neither  you,  my  Lord,  nor  any 
of  your  subjects,  can,  according  to  the  law  of  this  realm, 
sentence  any  prelate  to  death,  and  the  Earl  has  a  right  to  be 
tried  by  his  peers." 

Throughout  this  period  the  regular  succession  from  emi- 
nence at  the  bar  to  a  judgeship  was  a  constantly  recurring 
process.  In  the  Year  Books  we  notice  some  interesting  inter- 
polations. Thus  Hull,  a  judge,  "  said  secretly,"  of  a  deci- 
sion of  Chief  Justice  Thirning,  "  that  it  was  never  before 
this  day  adjudged  to  be  law."  Another  judge,  Hill,  passing 
upon  a  "  stayout  "  agreement,  where  a  dyer  had  bound  him- 
self by  a  bond  not  to  pursue  his  trade  for  half  a  year,  ruled 
that  the  covenant  was  against  the  common  law,  adding: 
"  And  by  God,  if  the  plaintiff  was  here,  he  should  go  to 
prison  till  he  paid  a  fine  to  the  King."  The  learned  Foss 
thinks  this  the  only  reported  oath  on  the  bench,  but  he  is 
greatly  in  error.  Bereford,  Brumpton,  Staunton  and  other 
judges  in  the  older  Year  Books  frequently  invoke  the 
Almighty.  Henry  ll.'s  favorite  oath  while  sitting  on  the 
bench  was,  "  by  God's  eyes ;"  King  John  swore  "  by  God's 
feet  " ;  and  the  Conqueror's  favorite  oath  was  "  by  the  splen- 
dor of  God."  Archbishop  Arundel,  who  as  Chancellor  pre- 
sided in  1407  over  the  trial  of  a  Lollard  priest,  William 
Thorpe,  accused  of  heresy,  swore  freely  from  the  marble 
chair,  "  by  God  "  and  "  by  St.  Peter."  The  accused  priest 
upon  this  trial  made  a  most  felicitous  Biblical  quotation  in 
answer  to  the  Archbishop;  the  latter  having  said  that  God 
had  raised  him  up  even  as  a  prophet  of  old  to  foretell  the 
utter  destruction  of  the  false  sect  of  the  priest,  the  priest 
retorted  with  the  words  of  Jeremiah :  "  When  the  word  that 


672  V.     BENCH   AND   BAR 

is  the  prophecy  of  a  prophet  is  known  and  fulfilled,  then  it 
shall  be  known  that  the  Lord  sent  the  prophet  in  truth."  1 

But  the  most  curious  circumstance  of  that  age  is  a  per- 
formance of  Judge  Tirwhit,  who  affords  ample  proof  that 
no  man,  not  even  a  judge,  can  be  his  own  lawyer.  Tirwhit 
had  brought  an  action  against  the  tenants  of  the  manor 
of  Lord  de  Roos.  Both  sides  were  afraid  to  trust  a  jury, 
so  the  cause  was  referred  to  the  arbitration  of  Chief  Justice 
Gascoigne.  The  Judge  thereupon  appointed  a  day,  called 
in  the  record  somewhat  cynically,  "  a  lovcday,"  for  the  par- 
ties to  come  before  him  with  their  evidences,  limiting  the 
witnesses  to  a  few  friends  of  either  party.  But  Tirwhit 
assembled  four  hundred  men,  who  lay  in  wait  for  Lord  de 
Roos  to  do  him  "  harme  and  dishonure."  Lord  de  Roos 
avoided  the  ambuscade,  but  complained  to  the  king.  Tir- 
whit was  arraigned  before  Parliament  and  acknowledged  that 
"  he  hath  noght  born  him  as  he  sholde  have  doon."  The  suit, 
by  the  award  of  the  Archbishop  of  Canterbury  and  Lord  de 
Grey,  the  Chamberlain,  was  again  referred  to  Gascoigne, 
while  Tirwhit  was  required  to  send  two  tuns  of  Gascony 
wine  to  Melton  Roos,  the  manor-house  of  Lord  de  Roos,  and 
to  take  there  "  two  fatte  oxen,  and  twelfe  fat  sheepe  to  be 
dispensed  in  a  dyner  to  hem  that  there  shall  be,"  and  Tir- 
whit was  to  attend  the  feast  with  all  "  the  knights  and  es- 
quires and  yomen  "  that  had  made  his  forces  on  the  "  for- 
said  loveday."  There  he  was  to  offer  a  full  speech  of  apol- 
ogy, which  concluded:  "  forasmuche  as  I  am  a  justice,  that 
more  than  a  comun  man  scholde  have  had  me  more  discreetly 
and  peesfully,  I  know  wele  that  I  have  failed  and  offended 
yow,  my  Lord  the  Roos,  whereof  I  beseke  yow  of  grace  and 
mercy  and  offer  you  500  mark  to  ben  paid  at  your  will." 
But  Lord  de  Roos  was  to  refuse  the  500  marks  and  forgive 
the  judge  and  all  his  party.  What  happened  at  the  feast, 
how  much  of  the  two  hogsheads  of  heady  wine  were  consumed, 
whether  heated  with  the  good  cheer  the  parties  fell  to  fight- 
ing over  the  legal  issue,  and  how  many  good  men  fell  (under 

1  Our  version  has  it:  "When  the  word  of  the  prophet  shall  come  to 
pass,  then  shall  the  prophet  be  known,  that  the  Lord  hath  truly  sent 
him."  Jer.  28  : 9. 


19.     ZANE:    THE    FIVE    AGES-  673 

the  table)  in  the  great  hall  of  Melton  Roos,  history  has 
not  told  us.  But  an  archbishop  who  could  prescribe  a  feast 
and  two  hogsheads  of  wine  as  a  peace  offering  certainly  can- 
not be  accused  of  any  prejudice  in  favor  of  sobriety.1 

This  was  the  age  of  noted  lawyers.  Such  names  as  Hank- 
ford,  Markham  and  Danby,  Norton,  Prisot,  Hody,  Moyle, 
Choke  and  Brian  are  great  names  in  the  Year  Books.  Hody, 
according  to  Coke,  was  "  one  of  the  famous  and  expert  sages 
of  the  law."  He  and  Prisot,  a  Chief  Justice  of  the  Common 
Pleas,  are  said  to  have  greatly  assisted  Littleton  in  writing 
his  work  on  Tenures.  Hody  tried  and  condemned  Roger 
Bolingbroke,  "  a  gret  and  konnyng  man  in  astronomye," 
for  attempting  "  to  consume  the  king's  person  by  way  of 
nygromancie."  The  unfortunate  scientist  was  sentenced  to 
death  and  executed.  Markham  furnishes  the  first  instance, 
for  generations,  of  the  removal  of  a  judge  for  an  unsatis- 
factory decision.  It  happened  in  this  wise:  Sir  Thomas 
Cooke,  lately  Lord  Mayor  of  London,  was  possessed  of.  vast 
landed  wealth.  The  Yorkists  in  1469  brought  him  to  trial 
for  loaning  money  to  Margaret  of  Anjou,  the  wife  of  the 
deposed  king,  Henry  VI.  The  cormorants  surrounding  Ed- 
ward IV.,  the  hungry  relatives  of  his  wife,  had  condemned 
Cooke  beforehand  and  considered  his  estate  as  their  lawful 
prey.  But  Markham  charged  the  jury  that  the*  act  proven 
was  merely 'misprision  of  treason,  and  thus  the  Lord  Mayor 
was  saved  from  forfeiture  of  his  estate.  Markham  was 
immediately  superseded  as  Chief  Justice. 

Another  name  celebrated  in  the  Year  Books  is  that  of 
Skrene.  He  is  a  favorite  with  the  reporters,  for  many  of 
his  deliverances  are  noted  with  the  same  approval  as  those 
of  the  judges.  In  later  times  such  men  as  Coke  deemed  all 
statements  of  law  as  of  equal  value,  and  cited  indiscriminately 
the  arguments  of  counsel  and  the  words  of  the  judges,  as  en- 
titled to  equal  credit.  Skrene  never  attained  a  judicial  posi- 
tion, but  he  left  a  fine  estate  called  Skrenes  which  was  many 
years  afterwards  purchased  by  Chief  Justice  Brampston. 

irThe  grandson  of  a  noted  lawyer  of  that  time,  by  name  Rede,  after- 
wards endowed  Jesus  College  at  Oxford  with  a  fellowship  and  a  brew- 
ery. The  brewery  for  the  use  of  undergraduates  is  a  startling  commen- 
tary on  our  Puritanical  practices. 


674  F.     BENCH   AND   BAR 

Both  Brian  and  Danby  are  sages  of  the  law  often  cited 
by  Coke  as  high  authority.  Choke,  a  contemporary,  served 
on  the  bench  for  many  years.  His  contribution  to  the  law 
is  composed  of  two  erroneous  and  troublesome  dicta.  One 
asserts  that  if  land  be  granted  to  a  man  and  his  heirs  so 
long  as  John  A'Down  has  heirs  of  his  body,  and  John 
A'Down  dies  without  heir  of  his  body,  the  feoff ment  is  deter- 
mined. John  Chipman  Gray,  with  an  amplitude  of  learning 
that  has  been  wasted  on  a  perverse  generation,  has  demon- 
strated that  Coke  and  Blackstone  are  in  error  in  following 
Choke's  deliverance.  Not  less  erroneous  is  Choke's  second 
dictum  as  to  the  reversion  of  the  property  of  a  corporation 
upon  its  dissolution,  but  the  courts  have  long  disregarded 
this  latter  proposition. 

Another  judge,  Walter  Moyle,  who  sat  through  the  wars 
of  the  Roses,  is  notable  as  the  progenitor  of  a  most  distin- 
guished legal  family.  His  granddaughter  and  heiress  mar- 
ried Sir  Thomas  Finch,  descended  from  an  old  Norman  fam- 
ily. Their  son,  Henry  Finch,  was  a  celebrated  serjeant  at 
law.  His  son,  John  Finch,  was  Attorney  General,  then  Chief 
Justice  of  the  Common  Pleas,  and  later  Lord  Keeper  under 
Charles  I.,  as  Lord  Finch  of  Daventry.  Another  grandson 
of  the  Moyle  heiress  was  Heneage  Finch,  a  celebrated  lawyer. 
His  son,  another  Heneage,  was  the  celebrated  chancellor, 
Lord  Nottingham,  the  Father  of  Equity  and  the  author  of 
the  Statute  of  Frauds.  His  son,  a  third  Heneage,  became 
celebrated  by  his  valiant  defence  of  the  Seven  Bishops  and 
was  made  Earl  of  Aylesford.  Three  earldoms,  Winchelsea, 
Nottingham,  and  Aylesford,  were  the  rewards  of  this  legal 
family. 

About  the  middle  of  the  fourteen  hundreds,  just  before 
the  wars  of  the  Roses,  it  became  apparent  that  the  salaries 
paid  to  the  judges  were  wholly  inadequate.  In  1440  William 
Ascough,  who  was  rapidly  advanced,  was  appointed  a  justice 
in  the  Common  Pleas.  He  petitioned  the  king  representing 
that  "  ere  he  had  been  two  years  a  serjeant,  he  was  called 
by  your  Highness  to  the  bench  and  made  justice,  whereby 
all  his  earnings,  which  he  would  have  had,  and  all  the  fees 
that  he  had  in  England,  were  and  be  ceased  and  expired  to 


19.     ZANE:    THE    FIVE    AGES  675 

his  great  impoverishment,  for  they  were  the  substance  of 
his  livelihood."  He  modestly  requested,  since  he  was  the 
poorest  of  the  justices,  a  life  estate  in  lands  of  £25  12*.  Wd. 
per  year.  Even  the  summons  to  serjeantcy  was  sometimes 
refused,  since  ,it  might  result  in  an  elevation  to  the  bench. 
It  is  certain  that  prior  to  this  time  the  Serjeants  had  a  mo- 
nopoly of  the  Common  Pleas,  for  in  1415,  William  Babing- 
ton,  John  Juyn,  John  Martyn,  and  William  Westbury  were 
called  to  the  degree  of  the  coif.  These  four  with  several 
others  declined  to  qualify  and  thereupon  complaint  was  made 
in  Parliament  that  there  was  an  insufficiency  of  Serjeants 
to  carry  on  the  business  of  the  courts.  Parliament  responded 
by  imposing  a  large  penalty  upon  any  one  who  refused  a 
summons  to  become  a  serjeant.  So  the  persons  called  as- 
sumed the  degree,  and  the  four  named  above  afterwards 
became  judges. 

A  judge  who  served  under  Henry  VI.  in  the  trying  time 
of  Cade's  rebellion  has  served  for  centuries  to  add  to  the 
gayety  of  nations.  Sir  John  Fastolf,  who  held  the  Kent 
assizes  in  1451,  was  a  gallant  soldier  and  a  lover  of  learn- 
ing. For  some  reason  Shakespeare  pictured  him,  under 
the  name  of  Falstaff  or  Fastolfe,  jn  his  Henry  VI.,  as  a  con- 
temptible coward  and  craven.  Later,  in  his  Henry  IV.,  when 
he  changed  the  name  of  the  fat  knight  Oldcastle  so  as  not 
to  offend  Puritan  prejudices,  Shakespeare  substituted  the 
name  of  the  character  in  his  older  play.  In  this  way  the 
blameless  Fastolf  has  been  handed  down  by  the  plays  of 
Henry  IV.  and  the  Merry  Wives  of  Windsor  as  the  richest 
comic  character  in  dramatic  literature.  The  real  man  left 
a  will,  of  which  Judge  Yelverton  was  an  executor.  It  is 
said  in  the  Paston  letters  that  in  a  suit  over  the  will  Yel- 
verton came  down  from  the  bench  and  pleaded  the  matter ! 

But  this  extraordinary  conduct  of  Yelverton  was  sur- 
passed by  that  of  Serjeant  Fairfax.  On  one  occasion  he 
was  employed  to  prosecute  certain  defendants ;  but  he  de- 
clared at  the  bar  that  he  knew  that  the  men  were  not  guilty, 
that  he  would  labor  their  deliverance  for  alms,  not  taking 
a  penny,  whereupon  the  prosecutor  naturally  retained  other 
counsel.  It  is  to  be  hoped  that  this  professional  betrayal 


676  V.    BENCH   AND    BAR 

was  not  common  at  that  day,  though  doubtless  the  foolish 
people  who  prate  about  the  iniquity  of  a  lawyer's  advocacy 
of  a  bad  cause  would  find  in  such  conduct  much  to  approve. 
This  Fairfax's  great-great-grandson  was  made  Lord  Fair- 
fax in  1637,  and  in  still  later  times  the  then  -Lord  Fairfax, 
smarting  under  some  court  beauty's  disdain,  buried  himself 
in  the  Virginia  wilderness,  and  added  to  history  by  befriend- 
ing the  young  surveyor,  George  Washington.  Washington 
was  sent  to  survey  his  friend's  vast  domain  beyond  the  Blue 
Ridge,  and  there  gained  the  knowledge  that  gave  him  his 
first  military  employment. 

The  fame  of  all  the  Lancastrian  and  Yorkist  lawyers  is 
eclipsed  by  that  of  Fortescue  and  Littleton.  Both  of  them 
were  legal  authors  and  very  successful  practitioners.  For- 
tescue, the  Lancastrian  judge,  survived  Littleton,  the  York- 
ist judge,  and  will  therefore  be  noticed  after  him. 

Thomas  Littleton  came  of  a  family  that  since  the  days 
of  Henry  II.  had  occupied  an  estate  at  South  Littleton  in 
Worcestershire.  Although  he  was  the  eldest  son  he  was  bred 
to  the  bar  at  the  Inner  Temple.  He  became  reader  for  his 
Inn,  and  the  subject  of  his  public  reading,  the  Statute  De 
Donis,  shows  the  early  tepdency  of  his  legal  studies.  He 
was  in  practice  as  early  as  1445,  for  in  that  year  a  litigant 
named  Hauteyn  petitioned  the  Lord  Chancellor  to  grant 
him  Littleton  as  counsel  in  a  case  against  the  widow  of  Judge 
Paston,  for  the  reason  that  none  of  the  men  of  the  court 
were  willing  to  appear  against  the  widow  of  a  judge  and  her 
son,  who  was  an  advocate.  This  would  seem  to  indicate  that 
Littleton's  practice  lay  in  the  chancery  and  not  in  the  law 
courts.  In  1452  Littleton  received  a  handsome  fee,  the  grant 
of  a  manor  for  life. pro  bono  et  notabili  consilio.  In  1453 
he  became  a  serjeant,  and  in  the  next  year  was  made  king's 
serjeant.  In  1460  he  was  one  of  the  king's  Serjeants  who 
successfully  evaded  an  answer  to  the  question  asked  by  Par- 
liament as  to  whether  the  Lancastrian  King  Henry  or  the 
Yorkist  Duke  Richard  had  the  better  title  to  the  throne. 
In  fact,  from  1455  to  1466  Littleton  practiced  his  profes- 
sion, refusing  to  mingle  in  the  political  disputes.  He  even 
took  the  lawyer-like  precaution  in  1461,  when  Edward  IV. 


19.    ZANE:    THE   FIVE   AGES  677 

supplanted  Henry  VI.,  to  sue  out  a  general  pardon  for  acts 
done  under  the  deposed  monarch.  In  1466  he  was  made  a 
justice  of  the  Common  Pleas,  and  so  remained,  even  under 
the  short  return  of  Henry  VI.  He  died  a  judge  in  1481. 
He  assisted  in  fixing  the  legal  landmark  of  Taltarum's  case, 
which  held  that  a  common  recovery  suffered  by  a  tenant  in 
tail  barred  not  only  the  issue  in  tail,  but  also  any  remainder 
limited  thereafter,  as  well  as  the  reversion  in  fee.  His  tomb, 
in  the  form  of  an  altar  of  white  marble,  still  remains  in 
Worcester  Cathedral.  His  will,  among  other  curious  be- 
quests, gallantly  provides  for  prayers  to  be  said  for  the 
good  of  the  soul  of  his  wife's  first  husband.  Gentle  sarcasm 
has  little  in  common  with  the  treatise  on  Tenures;  but  it 
may  be-  that,  after  an  experience  with  the  widow  of  the  de- 
ceased, Littleton  felt  that  the  unfortunate  man  deserved  the 
prayers.  The  will  show^  Littleton  to  be  a  pious  soul  fully 
persuaded  of  the  efficacy  of  prayers  to  prevent  the  "  long 
tarying  "  of  the  soul  in  purgatory. 

While  Littleton's  treatise  was  put  into  its  final  form  in 
the  latter  part  of  his  life,  it  is  probable  that  the  Tenures  is 
an  amplification  of  his  reading  on  De  Donis  and  represents 
the  collected  work  of  a  lifetime.  It  is  a  marvel  to  find  a  work 
on  the  law  into  which  no  apparent  error  has  crept.  This 
book  has  remained  the  classic  treatise  on  estates,  and  its 
words  to-day  are  cited  as  the  undoubted  common  law.  Fol- 
lowing Fortescue's  saying  that  "  from  the  families  of  judges 
often  descend  nobles  and  great  men  of  the  realm,"  it  may 
be  noted  that  Littleton's  eldest  son  married  one  of  the  co- 
heiresses of  Edmund  Beaufort,  Duke  of  Somerset,  and  by 
right  of  that  descent,  Littleton's  descendants,  who  are  Vis- 
counts Cobham,  quarter  the  royal  arms  of  the  house  of  Lan- 
caster. The  descendant  of  Littleton's  second  son  is  Lord 
Hatherton,  while  the  great-grandson  of  Littleton's  third  son 
was  Lord  Lyttleton,  Lord  Keeper  under  Charles  I.  An- 
other descendant  was  a  baron  of  the  Exchequer  under 
Charles  II.  * 

The  traditional  portrait  of  Littleton  is  unfortunately 
not  authentic.  He  is  shown  wearing  the  collar  of  SS,  still 
worn  by  the  Lord  Chief  Justice  of  England,  but  absolute 


678  V.    BENCH   AND   BAR 

discredit  is  thrown  on  the  portrait  by  the  portcullis  of  the 
Tudors,  next  to  the  clasp  of  the  collar,  which  was  not  intro- 
duced until  Henry  VII. 's  time.  The  Elizabethan  ruff  is 
hardly  the  attire  we  should  expect  in  the  Yorkist  age.  Coke, 
however,  who  knew  nothing  about  it,  says  that  the  picture 
is  a  very  good  likeness.  But  the  monumental  effigy  of  Little- 
ton, possibly  authentic,  shows  a  kneeling  figure.  Out  of 
his  mouth  issues  the  motto  uaig  dieu  et  ung  roy,  and  the  face 
has  the  smooth  look  of  a  Yorkist  courtier,  but  indicating  the 
keenness  of  intellect  required  for  the  systematizer  of  the  nice 
discriminations  of  the  law  of  real  estate. 

Littleton  was  simply  a  great  lawyer  and  judge,  but  his 
greatest  contemporary  was  more  than  a  great  lawyer  and 
judge;  he  was  an  enlightened  statesman,  a  gallant  soldier, 
a  writer  of  transcendent  merit  upon  constitutional  law,  and 
a  scholar  whose  words  upon  his  profession  possess  a  peculiar 
charm  even  for  men  wholly  unacquainted  with  legal  lore. 
John  Fortescue  was  a  lineal  descendant  of  the  knight  (Le 
Fort  Escu)  who  bore  the  shield  of  William  the  Conqueror 
at  Hastings.  Educated  at  Exeter  College,  Oxford,  For- 
tescue was  trained  for  the  bar  at  Lincoln's  Inn,  of  which 
he  was  a  governor  from  1425  to  1429.  In  the  latter  year 
he  was  made  a  serjeant,  and  is  shown  in  the  Year  Books  as 
in  immense  practice,  until  in  1442  he  became  Lord  Chief 
Justice  of  the  King's  Bench.  His  salary  in  that  office  was 
£120  a  year,  with  an  allowance  of  two  robes  and  two  tuns 
of  Gascony  wine  per  year.  His  yearly  salary  was  after- 
wards increased  to  £160.  He  served  as  Chief  Justice  until 
1461.  During  his  term  occurred  Cade's  rebellion,  and  one 
of  the  charges  against  Fortescue  and  Prisot,  the  Chief 
Justices,  was  that  of  "  falseness."  No  sooner  suppressed  was 
this  rebellion,  where  Cade  took  the  significant  name  of  Mor- 
timer, than  the  Duke  of  York  set  up  his  claim  to  the  throne, 
as  descended  through  the  Mortimers  from  the  third  son  of 
Edward  III.  The  judges,  the  king's  counsel,  the  Serjeants 
at  law,  were  all  asked  for  legal  opinions  on  the 'title  to  the 
throne,  but  all  declined  to  give  an  opinion.  Both  parties 
took  up  arms.  Chief  Justice  Fortescue  vindicated  his  descent 
from  a  long  line  of  knightly  ancestors  by  taking  the  field. 


19.     ZANE:    THE    FIVE    AGES  679 

He  was  in  almost  every  one  of  the  battles ;  and  after  Tow- 
ton,  the  bloodiest  battle  in  English  history,  he  went  into  exile 
with  the  Lancastrians.  He  returned  and  fought  at  Tewkes- 
bury,  the  last  battle  of  the  war,  and  was  taken  prisoner. 

During  his  exile  he  had  written  the  work  which  we  call 
De  Laudibus  Legum  Angliae.  The  book  was  written  to 
instil  into  the  young  Prince  of  Wales,  Henry  VI. 's  son,  whose 
education  was  entrusted  to  Fortescue,  a  proper  knowledge 
of  English  institutions.  The  book  is  invaluable  as  showing 
not  only  a  profound  appreciation  of  the  free  and  liberal 
principles  of  the  common  law,  but  also  the  condition  of  the 
English  law  at  that  epoch.  Fortescue  also  wrote  a  tract 
in  support  of  the  Lancastrian  title  to  the  throne,  which  he 
based  upon  the  solemn  declaration  of  Parliament  and  the 
nation's  acceptance.  When  Fortescue  found  that  the  Lan- 
castrian cause  was  ruined,  he  prayed  for  a  pardon  from  the 
Yorkist  king.  There  had  been  little  change  in  the  bar  or 
the  courts  during  Fortescue's  exile.  Fortescue  himself  had 
been  succeeded  by  Markham,  and  Prisot,  another  avowed 
Lancastrian,  was  displaced  by  Danby;  but  all  the  other 
judges  had  remained.  The  courts  had  gone  on  in  regular 
fashion  during  the  fierce  wars,  and  the  bar  was  composed 
of  many  of  the  men  who  had  practiced  before  Fortescue. 
Billing,  a  subservient  wretch  who  had  succeeded  Markham, 
although  one  of  the  first  of  a  long  line  of  the  disgraceful 
judicial  tools  of  Yorkist,  Tudor  and  Stuart  kings,  kept  up 
the  traditional  kindliness  of  the  English  bar  by  intervening 
strongly  for  Sir  John  Fortescue,  and  obtained  for  him  a 
pardon  with  the  restoration  of  his  estates.  But  by  a  curious 
whim  of  Edward  IV.,  Fortescue  was  required  to  write,  in 
favor  of  the  Yorkist  title,  a  refutation  of  his  book  demon- 
strating the  validity  of  the  Lancastrian  title  to  the  throne. 
The  two  treatises  appear  in  Fortescue's  works,  and  each  of 
them  constitutes  the  best  argument  for  the  respective  oppos- 
ing claims. 

If  one  were  asked  to  name  in  English  law  an  equal  to 
Fortescue,  he  could  point  to  but  three  names  —  Bacon, 
Somers  and  Mansfield.  Just  as  Bacon  and  Somers  were 
impeached,  and  Mansfield  bitterly  denounced,  so  we  find, 


680  F.     BENCH    AND    BAR 

here  and  there  in  the  Paston  letters,  hints  that  Fortescue 
was  an  object  of  hatred.  A  correspondent  during  Cade's 
rebellion  says :  "  The  Chief  Justice  hath  waited  to  be  as- 
saulted all  this  sevennight  nightly  in  his  house,  but  nothing 
come  as  yet,  the  more  pity."  It  is  not  uncommon  for  For- 
tescue to  be  represented  as  more  of  a  politician  than  a 
lawyer;  but  the  Year  Books  of  Henry  VI.  show  him  to  be 
a  consummate  master  of  the  common  law,  whom  even  Coke 
mentions  with  reverence.  One  decision  of  his,  in  the  case 
of  Thorpe,  Speaker  of  the  House  of  Commons,  is  written 
in  our  Federal  and  all  our  State  constitutions. 

In  his  books  "  De  Laudibus  "  and  "  Monarchy  "  he  shows 
that  he  is  the  first  of  England's  great  constitutional  lawyers. 
He  points  out  to  his  young  prince  that  the  Roman  maxim, 
"  quidquid  principi  placuit,  habet  legis  vigorem,"  has  no 
place  in  English  law ;  that  the  king's  power  is  derived  from 
the  people  and  granted  for  the  preservation  of  those  laws, 
which  protect  the  subjects'  persons  and  property;  that  the 
king  cannot  change  the  laws  without  the  consent  of  the  three 
estates  of  the  realm,  the  baronage,  clergy,  and  commons ; 
that  the  Parliament  has  power  because  it  is  representative 
of  the  whole  people;  that  the  king's  power  of  pardon  and 
the  whole  domain  of  equity  is  the  king's  for  the  good  of  his 
subjects;  that  the  limitations  upon  kingly  power  are  not 
a  humiliation  to,  but  for  the  glory  of  the  king ;  that  right- 
eous judgment  is  his  first  duty,  that  the  courts  of  law  are 
his,  but  he  does  not  act  personally  in  judgment;  that  the 
laws  of  England  are  better  than  those  of  France,  because 
they  recognize  no  torture,  because  they  provide  the  institu- 
tion of  the  jury,  carefully  regulated  courts,  a  legal  profes- 
sion trained  in  the  great  legal  university,  the  Inns  of  Court, 
and  because  all  men's  rights  are  equally  protected  by  law. 
Certainly  no  nobler  picture  of  a  constitutional  system  has 
ever  been  put  forth  by  any  English  lawyer.  It  is  the  pre- 
cocious development  of  the  three  Henries,  a  system  far  ahead 
of  the  times ;  under  a  strong  king  like  Henry  V.,  England 
was  the  first  power  in  Europe;  but  a  weak  king  like 
Henry  VI.,  kindly,  just,  temperate,  humane,  gentle  in  his 
methods,  pure  and  upright  of  life,  the  best  man  who  ever 


19.     ZANE:    THE   FIVE   AGES  681 

sat  on  the  English  throne,  found  himself  ruined  and  de- 
throned. The  nation  which  voluntarily  abandoned  this  sys- 
tem deserved  the  Yorkist,  Tudor,  and  Stuart  tyranny.  And 
every  step  that  since  was  gained  in  England  was  obtained 
by  restoring  some  principle  of  this  theory  of  government 
so  boldly  sketched  by  Fortescue. 

It  is  a  pleasure  to  know  that  the  manor  which  the  Chief 
Justice  bought  and  transmitted  to  his  posterity  gave  a  title 
to  his  descendants  as  Viscounts  Ebrington,  and  that  the 
head  of  the  family,  as  Earl  Fortescue,  sits  in  the  House 
of  Lords,  while  three  Fortescues  since  his  time  have  sat  as 
judges  in  Westminster  Hall. 

Here  at  this  period,  when  modern  history  is  just  begin- 
ning, when  the  use  of  printing  was  about  to  multiply  books 
and  legal  treatises,  when  the  law  itself  was  passing  through 
a  great  transformation,  when  the  growth  of  the  chancellor's 
jurisdiction  by  means  of  conveyances  to  uses  was  to  suffer 
a  great  expansion,  when  chancery  was  to  gain  its  control 
over  common  law  actions  by  injunctions,  when  land  was  to 
become  again  alienable,  when  the  actions  of  ejectment,  of 
trespass,  of  trover  and  of  assumpsit  were  developing  and  the 
older  actions  passing  away,  when  the  jury  was  becoming 
a  body  of  men  which  heard  evidence  only  in  open  court  under 
the  control  of  the  judge,  when  the  great  advocate  with  his 
skill  in  eliciting  evidence  and  in  addressing  the  jury  now 
first  found  a  place  in  the  practice,  and  all  court  proceedings, 
except  formal  declarations,  were  transacted  in  the  English 
tongue,  we  have  in  Fortescue's  work  a  picture  of  the  Eng- 
lish legal  system.  But  the  most  interesting  portion  of  his 
work  is  the  description  of  the  system  of  legal  education  at 
the  Inns. 

The  origin  of  the  Inns  of  Court  is  lost  in  antiquity ;  but 
it  is  practically  certain  that  there  was  a  body  of  law  stu- 
dents older  than  any  of  the  Inns.  One  set  of  students  in 
Edward  II. 's  reign,  or  soon  thereafter,  obtained  quarters 
in  the  Temple  and  soon  divided  into  the  Middle  and  the 
Inner  Temple.  Another  body  of  students  probably  obtained 
from  that  ill-starred  woman,  the  heiress  of  the  deLacys,  the 
town-house  of  the  Earls  of  Lincoln,  and  became  Lincoln's 


682  V.     BENCH   AND   BAR 

Inn.  Still  later  another  body  obtained  the  mansion  of  the 
Lords  Gray  de  Wilton,  and  became  Gray's  Inn.  Connected 
with  the  larger  Inns  were  ten  smaller  Inns  of  Chancery, 
having  no  connection  with  the  court  of  chancery,  but  so 
called  because  they  were  the  preparatory  schools  where  the 
students  studied  the  original  writs,  which  were  issued  out 
of  the  chancery.  f 

But  there  was,  of  course,  some  reason  why,  on  the  edge 
of  the  city,  just  beyond  the  city  wall,  all  these  students 
should  have  found  a  lodging  place.  Fortescue  explains  that 
the  laws  of  England  cannot  be  taught  at  the  university, 
but  that  they  are  studied  in  a  much  more  commodious  place, 
near  the  king's  court,  where  the  laws  are  daily  pleaded  and 
argued  and  where  judgments  are  rendered  by  grave  judges, 
of  full  years,  skilled  and  expert  in  the  laws.  The  place  of 
study  is  near  an  opulent  city,  but  in  a  spot  quiet  and  retired, 
where  the  throng  of  passers-by  does  not  disturb  the  students, 
yet  where  they  can  daily  attend  the  courts. 

In  the  smaller  Inns  the  nature  of  writs  is  studied.  The 
students  come  there  from  the  universities  and  grammar 
schools,  and  as  soon  as  they  have  made  some  progress  they 
pass  into  the  larger  Inns.  At  each  of  the  smaller  Inns  are 
about  a  hundred  students,  while  none  of  the  larger  Inns  has 
less  than  two  hundred.  These  four  larger  Inns  were  wholly 
voluntary  institutions.  The  older  and  better  known  barris- 
ters of  an  Inn  became  the  benchers,  and  they  were  self-per- 
petuating. They  alone  had  and  still  retain  the  exclusive  priv- 
ilege of  calling  to  the  bar,  but  upon  their  refusal  an  appeal 
lay  to  the  judges.  In  these  four  Inns  the  students  studied 
the  cases  in  the  Year  Books,  the  legal  treatises  called  Fleta 
and  Britto-n,  read  the  statutes,  and  attended  at  court  in 
term  time. 

Instruction  was  given  by  arguing  moot  cases  before  a 
bencher  and  two  barristers  sitting  as  judges,  and  by  lec- 
tures called  readings  delivered  by  some  able  barrister  belong- 
ing to  the  Inn.  These  readings  were  often  cited  as  author- 
ity. Littleton's  was  on  De  Donis,  Bacon's  was  on  the  Statute 
of  Uses,  Dyer's  upon  the  Statute  of  Wills,  Coke's  upon  the 
Statute  of  Fines.  It  was  a  high  honor  to  be  selected  as 


19.     ZANE:    THE    FIVE    AGES  683 

reader,  and  the  expense  of  readers'  feasts  at  the  Inns  became 
very  great.  After  a  student  had  studied  for  seven  years 
(afterwards  reduced  to  five),  he  was  eligible  to  be  called  to 
the  bar.  The  barristers  before  becoming  Serjeants  were 
probably  called  apprentices,  although  that  term  was  some- 
times applied  to  the  students.  Whether  an  examination  was 
required  is  problematical,  but  possibly  that  part  of  the 
ceremony  of  instituting  a  Serjeant,  which  requires  the  ser- 
jeant  to  plead  to  a  declaration,  points  to  an  examination  of 
some  perfunctory  sort.- 

While  the  students  were  pursuing  their  studies  in  the  law, 
they  were  instructed  in  various  other  branches  of  learning, 
if  we  may  believe  Fortescue.  Singing,  all  kinds  of  music, 
dancing,  and  sports  were  taught  to  the  students  in  the  same 
manner  as  those  who  were  brought  up  in  the  king's  house- 
hold were  instructed.  The  revels  and  masques  of  the  law 
students  became  a  great  feature  of  court  life.  On  week 
days  the  greater  part  of  the  students  devoted  themselves 
to  their  legal  studies,  but  on  festival  days  and  Sundays 
after  divine  service,  they  read  the  Holy  Scriptures  and  pro- 
fane history.  In  the  Inns  of  Court  every  virtue  is  learned 
and  every  vice  is  banished,  says  Fortescue;  the  discipline 
is  pleasant,  and  in  every  way  tends  to  proficiency.  Such  is 
the  reputation  of  these  schools  that  knights,  barons,  and 
the  higher  nobility  put  their  children  here,  not  so  much  for 
the  purpose  of  making  them  lawyers  as  to  form  their  man- 
ners and  bring  them  up  with  a  sound  training.  The  con- 
stant harmony  among  the  students,  the  absence  of  piques 
or  differences  or  any  bickerings  or  disturbances,  which  For- 
tescue 'asserts,  taxes  our  credulity.  But  he  claims  that  an 
expulsion  from  an  Inn  was  feared  more  by  the  students  than 
punishments  are  dreaded  by  criminals. 

The  high  social  position  of  the  students,  a  phenomenon 
that  is  always  noticeable  in  the  English  barrister,  is  warmly 
commended  by  Fortescue.  The  expense  of  the  residence  at 
an  Inn,  which  is  twenty-eight  pounds  a  year  (equal  to  almost 
twenty  times  that  amount  at  present  money  values),  restricts 
the  study  of  the  law  to.  the  sons  of  gentle  folk.  The  neces- 
sity of  a  servant  doubles  this  expense,  and  the  poor  and 


684  V.     BENCH   AND   BAR 

common  classes  are  not  able  to  bear  so  great  a  cost,  while 
the  mercantile  people  rarely  desire  to  deplete  their  capital 
by  such  an  annual  burden.  "  Whence  it  happens  that  there 
is  hardly  a  skilled  lawyer  who  is  not  a  gentleman  by  birth, 
and  on  this  account  they  have  a  greater  regard  for  their 
character,  their  honor  and  good  name." 

After  a  barrister  had  been  called,  he  generally  practised 
on  the  circuit.  P'ortescue  himself  traveled  the  western  cir- 
cuit. He  narrates  how  he  saw  a  woman  condemned  and 
burned  for  the  murder  of  her  husband,  and  at  the  next 
assizes  he  heard  a  servant  confess  that  he  had  killed  the 
husband  and  that  the  wife  was  entirely  innocent.  From 
this  occurrence  Fortescue  draws  a  justification  for  the  law's 
delay.  "  What  must  we  think,"  he  says,  "  of  this  precip- 
itate judge's  prickings  of  conscience  and  remorse,  when  he 
reflects  that  he  could  have  delayed  that  execution.  Often, 
alas,  he  has  confessed  to  me  that  he  could  never  in  his  whole 
life  cleanse  his  soul  from  the  stain  of  this  deed."  In  an- 
other place  Fortescue  makes  the  remark  that  has  been  so 
often  quoted :  "  Indeed  one  would  much  rather  that  twenty 
guilty  persons  should  escape  the  punishment  of  death,  than 
that  one  innocent  person  should  be  executed." 

The  barrister  after  sixteen  years'  service  may  be  called 
upon  to  take  the  degree  of  serjeant  at  law.  Then  he  dons 
a  white  silk  cap,  which  a  serjeant  does  not  doff  even  while 
talking  to  the  king.  After  much  solemn  and  stately  cere- 
monial and  feasting,  the  new  serjeant  is  assigned  his  pillar 
at  the  Parvis  of  St.  Paul's,  where  he  consults  his  clients 
and  attorneys.  The  orthodox  rule,  which  became  a  custom 
in  England,  that  it  is  unprofessional  for  a  barrister  to  re- 
ceive his  instructions  or  fee  from  the  client,  did  not  then  exist. 
Even  in  much  later  times  Wycherly,  who  had  been  a  law 
student,  sees  no  incongruity  in  the  client  consulting  a  bar- 
rister. In  his  exceedingly  filthy,  but  witty  play,  The  Plain- 
dealer,  the  litigious  Widow  Blackacre  is  consulting  her  coun- 
sel, Serjeant  Ploddon,  and  says  to  him:  "Go  then  to  your 
Court  of  Common  Pleas  and  say  one  thing  over  and  over 
again ;  you  do  it  so  naturally,  that,  you  will  never  be  sus- 
pected for  protracting  time." 


19.     ZANE:    THE    FIVE    AGES  685 

As  in  after  times,  the  judges  were  selected  only  from  the 
Serjeants.  Fortescue  describes  the  oath  which  the  judges 
take,  —  to  do  justice  to  all  men,  to  delay  it  to  none,  even 
though  the  king  himself  command  otherwise,  that  he  will  take 
no  gift  or  reward  from  any  man  having  a  cause  before  him 
and  will  take  no  robes  or  fees  except  from  the  king.  Lov- 
ingly Fortescue  tells  of  the  life  of  leisure  and  study  of  the 
judges,  how  the  courts  sit  only  in  the  morning,  from  eight 
until  eleven.  Then  the  judges  go  to  their  dinner.  At  Ser- 
jeants' Inn  the  judges  dined  and  met  the  Serjeants  there. 
Fortescue  himself  had  chambers  in  the  old  Serjeants'  Inn.1 
From  Clifford's  Inn  one  may  now  enter  the  old  building 
where  Fortescue  lodged,  but  it  is  no  longer  used  by  the 
Serjeants,  for  that  ancient  order  is  extinct.  After  their 
dinner  the  judges  spent  the  rest  of  the  day  in  the  study 
of  the  laws,  reading  of  the  Scriptures,  and  other  studies 
at  their  pleasure.  It  is  a  life  rather  of  contemplation  than 
of  action,  says  Fortescue,  free  from  every  care  and  removed 
from  worldly  strife.  Proudly  he  tells  his  prince  that  in  his 
time  no  judge  was  found  that  had  been  corrupted  with  gifts 
or  bribes. 

Fortescue's  De  Laudibus  is  the  unique  production  of  that 
age.  Here  we  see  the  legal  system  set  forth,  from  the  day 
the  student  enters  an  Inn  of  Chancery  through  his  studies 
in  an  Inn  of  Court,  his  service  at  the  bar,  until  his  elevation 
and  work  upon  the  bench.  It  is  fully  described  by  one  of 
the  greatest  of  common  lawyers,  "  this  notable  bulwark  of 
our  laws,"  as  Sir  Walter  Raleigh  calls  Fortescue.  But  we 
ought  not  to  part  from  this  great  lawyer  without  remarking 
his  serene  and  steadfast  faith  in  God's  direct  government 
of  the  world,  —  that  wonderful  faith  of  the  Middle  Ages. 
Fortescue  feels  that  the  good  man  is  blessed.  The  fact 
that  upright  judges  leave  behind  them  a  posterity  is  to  him 

JThe  Serjeants  at  law  had  their  lodgings  in  the  Old  Serjeants'  Inn, 
which  stands  in  Chancery  Lane.  But  it  is  likely  that  the  lodgings  were 
occupied  only  during  term  time.  The  Paston  Letters  tell  us  how 
the  good  wife  at  home  sent  up  from  the  country  hams,  chickens  and 
cheese.  But  as  soon  as  court  adjourned  for  the  long  vacation  the  ser- 
jeants  and  judges  hurried  to  their  homes  in  the  country.  The  arrange- 
ment of  the  terms  with  the  long  vacation  at  harvest  time  proves  the 
country  residence  of  the  judges  and  lawyers. 


686  V.     BENCH    AND    BAR 

one  of  God's  appropriate  blessings  upon  just  men.  It  is  a 
fulfillment  of  the  Prophet's  word  that  the  generation  of  the 
righteous  is  blessed,  that  their  children  shall  be  blessed,  and 
that  their  seed  shall  endure  forever.  Perhaps  Fortescue, 
after  the  fatal  field  of  Tewkesbury,  when  he  lay  a  prisoner 
in  the  Tower,  found  consolation  in  the  promise  of  the  Psalm- 
ist :  "  The  steps  of  a  good  man  are  ordered  by  the  Lord ; 
though  he  fall,  yet  shall  he  not  be  utterly  cast  down,  for 
the  Lord  sustaineth  him  with  his  hand."  For  once  at  least 
the  promise  came  true.  Fortescue  lived  his  last  years  in 
peace  and  honor.  He  saw  the  bloody  tyrant,  Richard  of 
Gloucester,  on  Bosworth  field,  pay  the  penalty  of  his  many 
crimes,  and  when  the  great  Chief  Justice  passed  away,  a 
Lancastrian  king  was  in  undisturbed  possession  of  the 
throne.  „ 

IV.     The  Iron  Age  of  the  Common  Law: 
From  Henry  VII.  to  the  Revolution  of  1688  1 

The  Yorkist  kings  had  betrayed  a  tendency  to  use  the 
courts  for  the  furtherance  of  tyrannical  ends ;  but  Henry 
VII.,  who  had  been  trained  in  the  Lancastrian  tradition  of 
the  independence  of  the  judiciary,  made  absolutely  no  change 
in  the  judges  after  his  victory  at  Bosworth.  The  avarice 
of  this  king  was,  however,  so  great  that  we  have  an  instance 
of  a  melancholy  practice  which  became  common  under  the 
Stuarts.  The  king  sold  to  Robert  Read,  a  very  good  law- 

1  General  references  for  this  period :  Foss  and  Campbell  now  become 
much  fuller  in  detail.  The  State  Trials  are  invaluable  for  the  whole 
period.  Besides  these  may  be  named:  Fitzherbert's  Abridgement,  New 
Natura  Brevium  and  Diversity  of  Courts,  Lynwoode's  Provinciate,  St. 
Germain's  Doctor  and  Student,  Select  Cases  from  the  Court  of  Requests 
(Selden  Society),  Select  Cases  from  the  Star  Chamber  (Selden  Society), 
Reeves'  History  of  English  Law,  Spedding's  Life  of  Bacon,  Anderson's, 
Dyer's,  Popham's  and  Plowden's  Reports,  Pollock's  Land  Laws,  Dug- 
dale's  Origines,  Staunforde's  Pleas  of  the  Crown,  Coke  upon  Littleton, 
Coke's  Institutes,  Coke's  Reports  with  the  Introductions,  Whitelocke's 
Memorials,  Hale's  Introduction  to  Rolle's  Abridgement  (in  Hargrave's 
Collecteana  Juridica),  Saunders'  Reports,  North's  Life  of  Lord 
Keeper  North,  Irving's,  Life  of  Jeffreys,  Roscoe's  Lives  of  Eminent 
Lawyers.  Hale's  Pleas  of  the  Crown  and  History  of  the  Common  Law 
are  not  critical.  For  the  historical  development  of  the  rules  of  evidence 
consult  Wigmore  on  Evidence  under  the  particular  rule. 


19.     ZANE:    THE    FIVE    AGES  687 

yer,  the  chiefship  of  the  Common  Pleas,  for  four  thousand 
marks. 

There  are  no  names  of  great  lawyers  in  this  reign.  The 
worthy.  Fineux,  who  became  Chief  Justice,  had  an  immense 
practice.  He  was  steward  to  129  manors  and  counsel  for 
16  noblemen.  His  industry  was  marvelous,  for  he  left  23 
folio  volumes  of  notes  of  3,502  cases  that  he  had  managed. 
The  growing  importance  of  the  mercantile  class  is  shown 
by  the  elevation  of  Frowick,  a  member  of  a  London  family 
of  goldsmiths.  He  succeeded  Brian  as  Chief  Justice  of  the 
Common  Pleas.  Thomas  Whittington,  a  baron  of  the  Ex- 
chequer, was  a  grand  nephew  of  the  famous  Richard  Whit- 
tington, who  walked  to  London  and  who  while  sitting  dis- 
couraged at  the  foot  of  Highgate  Hill  heard  the  prophecy 
of  Bow  Bells,  and  lived  to  become  the  banker  of  kings  and 
the  greatest  of  merchant  princes. 

Another  celebrated  lawyer  of  this  time  was  Richard 
Kingsmill.  A  letter  still  extant  says :  "  For  Mr.  Kings- 
mill  it  were  well  doon  that  he  were  with  you  for  his  authority 
and  worship,  and  he  will  let  for  no  maugre,  and  yf  the 
enquest  passe  against  you  he  may  showe  you  summ  com- 
fortable remedy,  but,  sir,  his  coming  will  be  costly  to  you." 
The  childlike  confidence  in  the  high-priced  lawyer  is  touch- 
ing. But  the  fees  seem  ridiculously  small.  We  know  that 
the  Goldsmiths'  Company  of  London  paid  a  retainer  of  ten 
shillings.  "  A  breakfast  at  Westminster  spent  on  our  coun- 
sel "  cost  one  shilling  sixpence.  Serjeant  Yaxley's  retainer 
from  the  litigious  Plumpton  for  the  next  assizes  at  York, 
Notts,  and  Derby,  was  five  pounds,  and  a  fee  of  forty  marks, 
if  the  Serjeant  attended  the  assizes. 

Two  interesting  features  of  this  time  are  the  beginning 
of  our  modern  law  of  corporations,  as  applied  to  merchant 
guilds  and  trading  corporations,  and  the  growth  of  law 
book  printing.  Caxton  printed  no  law  book;  but  Wynken 
de  Worde  printed  Lynwoode's  Provinciale,  and  Lettou  and 
Machlinia,  trained  under  Caxton,  printed  in  1480  Littleton's 
Tenures,  an  edition  supposed  to  have  been  superintended 
by  the  author.  This  book  was  most  frequently  reissued; 
and  two  famous  printers,  Pynson  and  Redman,  got  into  a 


688  V.     BENCH   AND   BAR 

savage  dispute  over  the  merits  of  their  respective  editions. 
In  a  few  years  the  demand  for  law  books  caused  the  printing 
of  some  of  the  Year  Books,  and  the  publication  of  the 
Abridgments  or  Digests  of  Statham  and  Fitzherber.t.  The 
New  Natura  Brevium,  St.  Germain's  Doctor  and  Student, 
Fitzherbert's  Diversity  of  Courts,  and  Perkins'  Profitable 
Book,  soon  appeared.  The  Year  Books  grow  more  and  more 
scrappy,  until  under  Henry  VIII.  they  pass  away.  But  in 
these  latter  years  they  are  sad  productions.  The  reporters 
have  lost  their  French.  Such  words  as  "  hue  and  cry," 
"  shoes,"  "  boots,"  and  "  barley,"  are  not  turned  into  French. 
The  law  French  degenerated  until  it  resembled  modern  pho- 
netic script.  A  learned  lawyer  wrote  in  this  wise :  "  Rich- 
ardson, C.  J.  de  C.  B.,  at  Assizes  at  Salisbury  in  summer 
1631,  fuit  assault  per  prisoner  la  condemne  pur  felony;  que 
puis  son  condemnation  ject  un  brickbat  a  le  dit  justice  que 
narrowly  mist.  Et  pur  ceo  immediately  fuit  indictment 
drawn  pur  Noy  envers  le  prisoner  et  son  dexter  manus  am- 
pute  et  fixe  al  gibbet  sur  que  luy  mesme  immediatement  hange 
in  presence  de  court."  The  matter  of  reporting,  however, 
was  now  taken  up  by  well-known  lawyers  and  judges.  An- 
derson, Dyer,  Owen,  Dalison,  Popham,  Coke,  Plowden,  Bend- 
loe,  Keilway,  and  Croke  have  left  valuable  reports,  all  in 
Norman  French. 

The  evidence  all  points  to  a  complete  breakdown  in  the 
jury  system  at  this  time.  The  Star  Chamber  court  merely 
continued  a  jurisdiction  long  existent  in  the  king's  council; 
but  some  portion  of  the  jurisdiction,  such  as  that  over  cor- 
ruptions of  sheriffs  in  making  jury  panels  and  in  false  re- 
turns, over  the  bribery  of  jurors,  and  over  riots  and  unlaw- 
ful assemblies,  was  now  put  into  statutory  form.  Yet  the 
court  would  not  allow  even  Serjeant  Plowden  to  argue  that 
it  was  confined  in  its  jurisdiction  by  the  words  of  the  statute. 
The  court  was  at  first  a  most  excellent  engine  for  partic- 
ular cases,  and  filled  a  great  public  necessity,  but  under  the 
later  Tudors  and  the  Stuarts  it  became  an  engine  of 
tyranny. 

This  period  was  characterized  in  the  criminal  law  by  most 
shameless  oppression  in  all  political  cases.  The  unrestrained 


19.     ZANE:    THE    FIVE    AGES  689 

rule  of  Henry  VIII.  and  Elizabeth  shows  many  a  cruel  in- 
stance of  judicial  sycophancy.  Yet  it  is  a  fact  that  both 
these  rulers  were  always  popular  among  the  lawyers.  Even 
to-day,  on  every  state  occasion  at  Gray's  Inn,  "  the  glorious, 
pious,  and  immortal  memory  "  of  Queen  Elizabeth  is  toasted 
by  the  benchers,  the  barristers,  and  the  students  rising,  three 
at  a  time,  and  taking  up  the  toast  in  succession.  Yet  it  was 
Henry  VIII.  who  reduced  to  an  infallible  system  the  art  of 
murder  by  the  forms  of  law.  The  judges  certified  Anne 
Boleyn  to  be  .guilty  of  high  treason,  because  she  was  reported 
to  have  said  the  king  never  had  her  heart.  A  jury  found 
the  Earl  of  Surrey  guilty  of  high  treason,  because  he  quar- 
tered the  arms  of  Edward  the  Confessor;  it  is  needless  to 
say  that  Edward  never  had  a  coat  of  arms.  The  grey- 
haired,  blameless  Countess  of  Salisbury  was  executed,  be- 
cause her  son  Reginald  Pole  had  become  a  Roman  cardinal. 
The  king  adopted  the  ingenious  methods  of  Chinese  justice, 
by  which,  if  the  offender  is  not  available,  his  nearest  relative 
suffers  in  his  stead.  The  judges  certified  that  Catherine 
Howard,  Henry's  fifth  queen,  was  guilty  of  high  treason, 
because  she  was  not  a  virgin  when  she  espoused  the  elderly 
and  battered  rake.  Cromwell,  Earl  of  Essex,  committed 
high  treason,  because  he  had  not  warned  Henry  that  Anne 
of  Cleves,  the  king's  fourth  bride,  was  hideously  ugly. 

Even  torture  was  resorted  to  in  criminal  trials.  Fox, 
in  his  Book  of  Martyrs  (which  is  embellished  by  numberless 
falsehoods),  says  that  Sir  Thomas  More  tortured  a  pris- 
oner. Elizabeth  ordered  Campion  the  Jesuit  to  be  put  upon 
the  rack;  and  Chief  Justice  Wray  presided  over  the  -trial. 
Throgmorton  was  convicted  on  confessions  obtained  by 
threats  of  torture.  The  evidence,  where  any  was  taken,  was 
often  worthless  hearsay.  The  trial  of  Sir  Thomas  More 
was  a  travesty  on  justice.  But  the  conviction  of  Fisher, 
Bishop  of  Rochester,  stamps  the  judges  with  infamy.  In 
that  trial  it  appeared  that  Bishop  Fisher,  mindful  of  the 
act  of  Parliament  which  made  it  high  treason  to  dispute  the 
king's  headship  of  the  Church,  had  steadily  refused  either 
to  admit  or  deny  the  king's  supremacy.  At  last  the  Attorney 
General,  Richard  Rich,  who  by  the  most  degrading  subservi- 


690  V.    BENCH   AND   BAR 

ency  to  the  humors  of  the  king  had  gained  preferment,  was 
sent  to  Fisher  in  the  Tower.  He  told  the  Bishop  that  he 
came  from  the  King,  who  desired  to  know  for  his  own  in- 
formation Fisher's  real  opinion  upon  the  disputed  point. 
The  Bishop  spoke  of  the  danger  arising  from  the  act  of 
Parliament,  but  Rich  assured  him  that  no  advantage  would 
be  taken  of  him  and  gave  him  the  promise  of  the  King  that 
his  answer  would  never  be  divulged.  Thereupon,  the  Bishop 
stated  that  he  thought  an  act  of  Parliament  could  no  more 
declare  the  King  head  of  the  church  than  it  could  declare 
that  God  was  not  God.  Fisher  was  at  once  brought  to  trial ; 
Rich  gave  the  sole  evidence  against  him;  and  the  judges 
allowed  the  Bishop  to  be  convicted  and  executed.  It  is  said 
that  the  judges  shed  tears  when  the  saintly  old  man  was 
condemned;  but  that  conduct  simply  adds  to  their  infamy. 
Sir  Thomas  More  was  convicted  and  brought  to  the  block 
upon  the  very  same  kind  of  testimony. 

Yet  during  this  whole  period  the  law  provided  even-handed 
justice  as  between  one  private  citizen  and  another.  The 
reports  of  Chief  Justice  Dyer,  Chief  Justice  Anderson,  and 
Serjeant  Plowden,  during  the  reign  of  Elizabeth,  abundantly 
prove  the  fact.  In  ordinary  criminal  trials  the  law  was 
growing  much  more  lenient.  It  was  only  when  the  govern- 
ment was  urging  the  prosecution  that  the  tyranny  of  the 
Tudors  and  Stuarts  left  the  individual  no  hope  against  the 
Crown.  Judicial  tenure  became  dependent  upon  subservi- 
ency to  the  wishes  of  the  executive.  Judicial  appointments 
were  given  solely  to  those  who  pledged  themselves  to  the 
royal,  designs.  The  real  history  of  the  law  is  found  in  the 
bloody  records  of  the  State  Trials.  The  processes  of 
law  are  used  by  the  government  with  almost  cynical  inde- 
cency. The  baronage  was  destroyed,  and  the  great  mass 
of  the  people,  the  cities  and  the  country  gentry,  eagerly 
supported  the  royal  authority. 

Before  passing  from  the  reign  of  Henry  VIII.  we  should 
notice  Lord  Chief  Justice  Montague,  who  founded  a  power- 
ful family,  and  is  now  represented  by  the  Duke  of  Manches- 
ter, the  Earl  of  Sandwich,  and  the  Earl  of  Wharncliffe.  An- 
other of  Henry  VIII.'s  judges  was  John  Spelman,  the  grand- 


19.     ZANE:    THE    FIVE    AGES  691 

father  of  the  celebrated  antiquary,  Henry  Spelman.  He  is 
not  specially  noted  for  his  judicial  utterances,  but  he  became 
by  one  wife  the  father  of  twenty  children. 

Under  Elizabeth,  those  unfortunate  gentlemen  upon  whom 
the  Queen  had  showered  her  favors  were  in  peculiar  peril. 
Anyone  of  her  numerous  lovers  who  had  the  temerity  to  take 
a  furlough  suffered  for  high  treason.  The  Earl  of  Hert- 
ford was  so  misguided  as  to  marry  a  wife.  Although  he 
prudently  went  abroad,  the  bride  was  thrown  into  the  Tower, 
and  when  the  Earl  returned,  he  also  was  imprisoned.  The 
Queen  had  the  marriage  declared  void,  and  fined  the  Earl 
fifteen  thousand  pounds.  The  young  Earl  of  Arundel  had 
a  similar  but  more  trying  experience,  when  he  became  recon-' 
ciled  to  his  wife  after  having  been  Elizabeth's  favorite.  He 
was  condemned  to  death,  but  was  saved  by  the  Queen's  min- 
isters. Hatton,  who  became  chancellor  through  the  graces 
of  his  person,  had  the  good  sense  to  remain  unmarried ;  and 
the  Earl  of  Leicester  kept  his  royal  mistress'  favor  by  for- 
getting his  duties  as  a  husband.  The  Duke  of  Norfolk  was 
convicted  because  he  was  suspected  of  a  desire  to  marry  the 
Queen  of  Scots.  That  Queen  was  executed  after  an  absurd 
trial  before  the  judges.  The  Secretary  Davidson,  who  at 
the  command  of  Queen  Elizabeth  had  issued  the  warrant  for 
the  execution  of  the  Queen  of  Scots,  was  savagely  prosecuted 
and  imprisoned  for  life. 

The  religious  controversies  fanned  the  cruel  instincts  of 
the  age.  Under  Henry  the  faithful  Catholics  suffered  the 
worst  oppressions.  The  chief  tool  of  Henry  VIII.  in  these 
matters  was  Thomas  Audley,  who  was  a  trained  lawyer  and 
succeeded  More  as  Lord  Chancellor.  He  devised  those  laws 
which  imposed  upon  every  man's  conscience  the  most  con- 
tradictory oaths. .  It  was  a  penal  offence  to  acknowledge  the 
Pope,  yet  it  was  no  less  penal  to  deny  a  single  article  of  the 
Romish  faith.  Whoever  was  for  the  Pope  was  beheaded 
and  whoever  was  against  him  was  burned.  The  legislation 
that  plundered  the  church  was  Audley's  work,  and  he  se- 
lected for  himself  a  rich  portion  of  the  spoil.  The  priory  of 
Christ  Church  in  Aldgate  became  his  town  house.  He 
claimed  the  wealthy  monastery  of  Walden,  representing  that 


692  V.     BENCH   AND   BAR 

he  had  sustained  great  damage  and  infamy  in  serving  the 
King.  On  the  ruins  of  that  abbey  his  grandson  Thomas 
Howard  erected  the  stately  Elizabethan  mansion  of  Audley 
End. 

When  the  Catholics  returned  to  power  under  Mary,  the 
Protestants  in  their  turn  suffered  the  penalties  of  heresy. 
One  trial,  however,  stands  out  in  this  reign  as  the  only  in- 
stance where,  under  the  Tudors,  a  prosecution  for  high  trea- 
son resulted  in  a  verdict  of  not  guilty.  Sir  Nicholas  Throck- 
morton  was  prosecuted  by  the  learned  Dyer,  then  Attorney 
General.  The  defendant  completely  outtalked  the  Attorney 
General,  and  made  him  appear  something  of  a  simpleton. 
He  modestly  compared  himself  to  the  Savior,  and  pictured 
Dyer  in  the  character  of  Pilate.  His  self-confidence  en- 
abled him  to  interrupt  Chief  Justice  Bromley's  charge  to 
the  jury.  Throckmorton  craved  "  indifferency  "  from  the 
judge,  and  helped  out  the  judge's  poor  memory  by  his  own 
recital  of  the  facts.  The  jury  that  acquitted  Throckmor- 
ton was  imprisoned  and  heavily  fined. 

The  judges,  who  were  Protestants,  on  the  accession  of 
Mary  conveniently  became  Roman  Catholics;  one  of  them, 
Sir  James  Hales,  had  scruples  but  was  induced  by  his  asso- 
ciate, Judge  Portman,  to  recant.  This  act  so  worked  on 
Hales'  conscience  that  he  drowned  himself.  The  coroner's 
jury  returned  a  verdict  of  suicide;  and  in  two  cases1  a 
number  of  hair-splitting  subtleties  were  uttered  by  the 
court  as  to  the  effect  of  the  suicide  in  forfeiting  the  Judge's 
estates.  Shakespeare  makes  the  learned  gravediggers  in 
Hamlet  discourse  over  Ophelia  in  words  that  are  almost  a 
literal  parody  on  the  arguments  of  the  judges. 

Elizabeth's  reign  produced  one  very  great  judge.  James 
Dyer  was  really  appointed  to  the  bench  under  Mary,  but 
the  most  of  his  judicial  service  was  under  Elizabeth.  He 
presided  in  the  Common  Pleas  for  twenty-three  years.  He 
took  no  part  in  the  disgraceful  political  trials  of  this  reign, 
but  directed  his  court  with  efficiency  and  learning.  The  poet 
Whetstone  has  these  lines  upon  Dyer : 

bishop  of  Chichester  v.  Webb,  2  Dyer  107;  Lady  Hales  v.  Pettit, 
Plowden  253. 


19.     ZANE:    THE    FIVE    AGES  693 

He  ruled  by  law  and  listened  not  to  art; 

These  foes  to  truth  —  love,  hate,  and  private  gain 

.  .  .  his  conscience  would  not  stain. 

John  Popham  offers  a  remarkable  contrast  to  Dyer.  Of 
high  birth,  educated  at  Oxford,  he  fell  into  evil  ways  while 
at  the  Middle  Temple.  He  even  resorted  to  the  calling  of 
a  highwayman  to  replenish  his  purse.  He  reformed,  however, 
and  became  a  consummate  lawyer;  he  was  made  Solicitor 
General  and  Speaker  of  the  House  of  Commons.  In  regular 
order  he  became  Attorney  General,  and  as  such  took  the  lead 
in  many  state  trials.  He  prosecuted  Tilney,  and  caused 
Chief  Justice  Anderson,  one  of  the  greatest  lawyers  of  the 
reign,  to  charge  the  jury  on  wholly  insufficient  evidence  that 
the  defendant  was  guilty  of  an  attempt  upon  the  Queen's 
life.  He  attempted  to  prosecute  Mary  Queen  of  Scots ;  but 
Hatton,  the  Chancellor,  took  the  work  out  of  Popham's 
hands.  Both  Elizabeth  and  Hatton  were  violently  inflamed 
against  the  Stuart  Queen,  on  account  of  the  ridicule  she  had 
heaped  on  the  love  affair  of  the  Virgin  Queen  and  her  Chan- 
cellor. Even  the  learned  but  apologetic  Foss  is  compelled 
to  say  that  the  warmth  of  Elizabeth's  letters  to  Hatton 
"  would  be  fatal  to  the  character  of  a  less  exalted  female." 
On  the  trial  of  Knightley,  a  Puritan,  who  in  temperate 
language  had  published  some  observations  on  the  due  observ- 
ance of  the  Sabbath,  Popham  contended  that  the  defendant, 
though  guilty  only  of  a  technical  violation  of  a  royal  proc- 
lamation and  for  that  reason  not  guilty  of  an  indictable 
offence,  could  yet  be  prosecuted  in  the  Star  Chamber.  He 
sagely  observed  as  to  the  defendant's  excuse  for  publishing 
his  pamphlet :  "  Methinks  he  is  worthy  of  greater  punish- 
ment for  giving  such  a  foolish  answer  as  that  he  did  it  at 
his  wife's  desire."  When  Popham  became  Lord  Chief  Justice 
he  showed  his  prejudice  against  his  former  calling  by  an 
unexampled  severity  against  highwaymen.  On  the  trial  of 
Essex  he  curiously  mingled  the  functions  of  witness  and 
judge,  and  in  his  summing  up  out  of  his  own  knowledge 
furnished  the  jury  with  statements  of  fact  that  had  not  been 
testified  to  by  any  witness.  By  his  exertions  at  the  bar  he 
accumulated  an  immense  estate  amounting  to  ten  thousand 


694  V.     BENCH    AND    BAR 

pounds  a  year ;  but  it  was  all  squandered  by  his  son,  another 
John  Popham. 

One  court  —  the  Court  of  Requests  —  that  fulfilled  a  very 
important  function  during  this  period  has  long  been  for- 
gotten. It  was  a  court  for  civil  causes  —  a  companion  court 
to  the  Star  Chamber  (which  devoted  itself  to  criminal  cases). 
Its  duty  was  to  hear  the  causes  of  those  suitors  who  were 
denied  justice  in  the  common  law  courts.  Wolsey  established 
one  branch  of  the  court  at  Whitehall,  while  another  branch 
followed  the  sovereign.  Wolsey's  fame  as  a  churchman  has 
wholly  obscured  his  high  reputation  as  a  judge.  In  the 
court  of  chancery,  in  spite  of  his  manifold  duties  as  Prime 
Minister,  he  was  regular  and  punctual,  and  his  decrees  were 
invariably  sound.  He  made  the  Court  of  Requests  emphat- 
ically a  court  to  redress  the  injustice  of  jury  trials.  Those 
who  failed  before  juries  on  account  of  the  corruption  of 
the  panel  or  the  power  of  their  adversaries  found  them- 
selves protected  in  the  Court  of  Requests,  which  followed 
the  chancery  practice  and  was  not  hampered  by  a  jury. 
Here  the  tenants  of  land  appealed  for  justice  against  their 
landlords,  here  the  copyholders  sought  relief  against  the 
enclosures  of  the  commons  and  waste  lands  of  the  manors. 
The  Protector  Somerset  owed  his  fall  to  his  active  interven- 
tion against  the  landholders ;  and  the  strict  impartiality 
of  Wolsey's  justice  and  the  sternness  with  which  he  repressed 
the  lawlessness  of  powerful  nobles  aided  in  his  destruction. 
The  Court  of  Requests  was  in  continual  collision  with  the 
common  law  courts.  Coke  invented  certain  imaginary 
judgments  in  order  to  destroy  it.  But  the  court  held  on, 
and  in  1627  Henry  Montague,  a  grandson  of  the  Chief 
Justice,  a  very  able  lawyer,  came  to  preside  in  this  court, 
and  gave  it  such  a  high  reputation  that  it  had  almost  as 
many  suits  and  clients  as  the  chancery.  Blackstone l  tells 
us  that  this  court  was  abolished  in  1640;  but  he  is  mis- 
taken, for  in  1642,  in  sixteen  days'  sittings,  the  court  made 
556  orders.  It  passed  away  in  the  turmoils  of  the  civil  war. 

The  jealousy  of  the  common  law  courts  toward  the  chan- 
cery culminated  in  Henry  VIII. 's  Statute  of  Uses,  which 

13  Com.  50. 


•      19.     ZANE:    THE    FIVE    AGES  695 

attempted  to  convert  every  use  or  trust  in  land  into  a  legal 
estate  in  the  beneficiary ;  this  was  followed  by  the  Statute 
of  Enrollments  requiring  all  conveyances  of  freehold  by 
bargain  and  sale  to  be  recorded  in  a  public  office.  But  the 
chancery  judges  and  lawyers  soon  "  drove  a  coach  and 
four  "  through  this  act  of  Parliament ;  and  by  means  of 
a  bargain  and  sale  for  a  lease,  which  the  statute  executed, 
followed  by  a  release,  which  did  not  require  recording,  they 
abolished  livery  of  seisin,  as  well  as  the  recording  of  deeds. 
The  Statute  of  Uses  also  abolished  all  uses  to  be  declared  by 
the  feoffor's  will.  The  uses  declared  in  the  will  had  been 
sedulously  protected  by  the  chancery  court.  But-  when  this 
method  of  devising  lands  was  abolished  by  the  Statute  of 
Uses,  it  became  necessary  to  pass  the  Statute  of  Wills.  Both 
Coke  and  Bacon  thought  that  the  Statute  of  Uses  abolished 
all  devises  except  those  that  would  have  been  good  at  common 
law  as  conveyances.  But  the  statute  was  construed  other- 
wise, and  the  chancery  lawyers  imported  into  wills  all  these- 
conveyances  to  uses,  and  thus  let  in  the  various  kinds  of 
executory  devises  —  estates  that  in  wills  rendered  nugatory 
all  the  common  law  rules  as  to  remainders.  All  this  history 
shows  the  futility  of  attempting  to  control  a  natural  devel- 
opment, by  means  of  statutes. 

In  many  ways  the  years  of  the  first  two  Stuart  kings  are 
the  saddest  in  the  history  of  the  law.  The  servility  of  the 
judges  was  no  less  marked  than  under  the  Tudors.  As  an 
added  evil,  judicial  offices  were  openly  made  the  subject  of 
bargain  and  sale.  Henry  Montague  gave  to  Buckingham's 
nominee  the  clerkship  of  the  court,  worth  four  thousand 
pounds  a  year.1  Coventry  paid  Coke  two  thousand  angels 
for  his  influence  in  securing  a  judicial  appointment.  The 
chief  ship  of  the  Common  Pleas  cost  Richardson  seventeen 
thousand  pounds.  Sir  Charles  Caesar  paid  fifteen  thousand 
pounds  for  the  mastership  of  the  rolls.  Henry  Yelvertori 
gave  the  King  four  thousand  pounds  for  the  office  of 
attorney-general,  —  a  place  for  which  Ley,  afterwards  Chief 

1  Perhaps  we  ourselves  have  as  yet  no  riprht  to  condemn  this,  when  we 
still  see  in  some  regions  masterships  in  chancery  turned  over  to  the 
successful  political  party  to  be  filled. 


696  V.    BENCH   AND   BAR 

Justice,  vainly  offered  ten  thousand  pounds.  Judge  Nichols 
refused  to  pay  for  his  place,  and  James  I.  always  referred 
to  him  as  "  the  judge  that  would  give  no  money."  The 
fifteen  Serjeants  called  in  1623  each  paid  the  King  five 
hundred  pounds.  Under  Cromwell,  the  pious  Lord  Chief 
Justice  St.  John  had  the  granting  of  all  pardons  to  delin- 
quent lawyers,  which  netted  him  forty  thousand  pounds ;  nor 
did  he  scruple  to  receive  bribes  for  places  under  the  Pro- 
tector. Under  James  II.,  the  young  daughters  of  the  leading 
citizens  of  Salisbury,  who  had  strewed  flowers  before  the 
rebel  Monmouth,  being  technically  guilty  of  high  treason, 
obtained  pardons  by  paying  money  to  the-  Queen's  maids  of 
honor,  to  whom  the  King  had  given  the  pardons.  That 
great  and  good  man  William  Penn  acted  as  the  agent  of  the 
needy  ladies  in  collecting  the  tribute. 

The  tone  of  adulation  used  by  lawyers  and  judges  toward 
the  sovereign  is  almost  incredible.  Rich  compared  Henry 
VIII.  "for  justice  and  prudence,  to  Solomon;  for  strength 
and  fortitude,  to  Samson ;  and  for  beauty  and  comeliness, 
to  Absalom."  Bacon  in  a  learned  treatise  felicitates  James 
I.  (who  was  little  better  than  a  drooling  idiot),  upon  the 
deep  and  broad  capacity  of  his  mind,  the  grasp  of  his 
memory,  the  quickness  of  his  apprehension,  the  penetration 
of  his  judgment,  his  lucid  method  of  arrangement,  and  his 
easy  facility  of  speech.  The  virtuous  Coke  claimed  that 
King  James  was  divinely  illuminated  by  the  Almighty.  But 
this  was  the  tone  of  the  age.  To  Shakespeare,  Elizabeth 
was  "  a  fair  vestal "  and  "  a  most  unspotted  lily." 

The  vices  of  the  age  are  summed  up  in  the  rivalry  of  its 
two  greatest  lawyers,  Bacon  and  Coke,  —  the  latter,  the  most 
learned  of  lawyers,  but  narrow,  cruel,  and  unscrupulous ; 
the  other,  of  large  insight,  capacious  intellect,  but  also  little 
troubled  by  scruples. 

Coke,  the  elder  of  the  two  men,  was  Solicitor-General, 
with  a  large  practice  and  ample  fortune,  when  Bacon,  with 
his  great  family  advantages,  tried  to  gain  the  office  of 
Attorney-General  against  him.  Coke  stood  in  the  line  of 
preferment.  He  bitterly  resented  Bacon's  nickname  of  the' 
"  Huddler  "  —  not  an  undeserved  name  for  the  author  of 


19.     ZANE:    THE    FIVE    AGES  697 

a  book  like  Coke  upon  Littleton.  Next  they  became  rivals 
for  the  hand  of  the  widow  of  Sir  William  Hatton,  a  beautiful 
woman,  only  twenty  years  old,  with  an  immense  fortune  and 
great  pretensions  to  fashion.  The  old  and  wrinkled  Coke, 
a  six  months'  widower,  prevailed.  But  while  the  lady  was 
willing  to  marry  Coke,  she  refused  to  espouse  such  an  elderly 
scarecrow  at  a  church  wedding.  So  Coke  married  her  in  a 
private  house,  and  thereby  violated  the  law.  His  plea  when 
prosecuted  was  ignorance  of  the  statute.  Perhaps  this  is 
the  real  reason  for  Coke's  oft  quoted  statement  as  to  statute 
law.  But  Bacon  made  a  fortunate  escape,  and  had  the 
satisfaction  of  enjoying  Coke's  domestic  infelicities.  Lady 
Hatton  refused,  after  several  quarrels,  to  live  with  Coke; 
she  further  refused  to  take  his  name,  which  she  insisted  on 
spelling  "  Cook."  She  refused  even  to  let  Coke  see  the 
daughter  she  had  borne  him,  and  turned  him  away  from 
her  do'or. 

Then  Essex's  trial  came  on.  Coke  surpassed  even  himself 
in  brutality,  while  Bacon  deserted  his  benefactor.  The  two 
men  soon  had  a  public  altercation  in  the  Exchequer  Court. 
To  curry  favor  with  the  new  king,  James,  Coke  prosecuted 
Raleigh  so  savagely  that  even  the  judges  sickened.  The 
remorseless  Popham  protested,  and  such  a  sycophant  as 
Lord  Salisbury  rebuked  Coke.  Thereupon  Coke  sat  down 
in  a  chafe  and  sulked,  until  the  judges  urged  him  to  go  on. 
Lord  Mansfield  said  long  afterwards :  "  I  would  not  have 
made  Sir  Edward  Coke's  speech  against  Sir  Walter  Raleigh 
to  gain  all  Coke's  estate  and  reputation."  When  Coke  prose- 
cuted the  Gunpowder  Plot  conspirators,  he  showed  to  the  full 
his  cowardly  method  of  insulting  the  prisoners.  Other  trials 
were  no  less  disgraceful.  Yet,  all  through,  worse  than  Coke's 
brutality,  is  his  pharisaical  self-satisfaction,  his  pitiable, 
snivelling,  hypocritical  piety.  The  best  excuse  for  Bacon 
is  that  he  was  engaged  in  a  rivalry  with  such  a  man. 

Coke  became  Lord  Chief  Justice  of  the  Common  Pleas  in 
1606,  and  used  his  place  to  humble  and  coarsely  insult  Bacon. 
But  Bacon's  suppleness  was  ingratiating  him  with  the  King. 
Coke  had  become  so  puffed  up  that  he  was  growing  independ- 
ent. Bacon  induced  James  to  put  Coke  at  the  head  of  the 


698  V.    BENCH   AND   BAR 

King's  Bench.  Coke  bitterly  reproached  Bacon,  who  replied : 
"  Ah,  my  Lord,  you  have  grown  all  this  while  in  breadth ; 
you  must  needs  grow  in  height,  or  else  you  would  be  a 
monster."  Coke  on  the  bench  was  fully  as  brutal  as  at  the 
bar.  In  one  case  he  told  the  jury  that  the  defendant,  Mrs. 
Turner,  had  the  seven  deadly  sins,  —  that  she  was  a  whore, 
a  bawd,  a  sorcerer,  a  witch,  a  papist,  a  felon  and  a  murderer. 

At  last  Coke  engaged  in  his  famous  controversy  with  Lord 
Chancellor  Ellesmere,  over  the  power  of  the  Chancery  to 
enjoin  proceedings  at  law,  and  drew  forth  the  masterly 
opinion  in  the  famous  case  of  the  Earl  of  Oxford.1  Coke 
threatened  to  imprison  everybody  concerned ;  but  Bacon  per- 
suaded the  King  that  Coke  was  in  the  wrong,  and  the  King's 
Bench  submitted.  Bacon  finally  caused  Coke  to  be  suspended 
from  office,  and  to  be  ordered  to  correct  his  book  of  reports, 
"  wherein  be  many  extravagant  and  exorbitant  opinions  set 
down  and  published  for  positive  and  good  law." 

Bacon  now  succeeded  Ellesmere  as"  Lord  Chancellor.  But 
Coke,  at  the  age  of  sixty-six,  was  not  yet  defeated.  He  had 
a  young  and  pretty  daughter;  her  he  offered  as  a  bride  to 
Sir  John  Villiers,  the  brother  of  Buckingham.  Coke's  wife 
fled  with  her  child;  but  Coke  pursued  her,  tore  the  child 
from  her  mother's  arms,  and  carried  her  off  to  London. 
Bacon  was  unable  to  help  Lady  Hatton.  The  mother  in 
prison  was  compelled  to  submit,  and  the  child,  after  a  splendid 
marriage,  was  handed  over  to  Sir  John  Villiers.  The  mar- 
riage turned  out  as  might  have  been  expected.  The  young 
wife  eloped  with  Sir  Robert  Howard.  Her  only  son  was 
declared  illegitimate,  and  did  not  receive  the  name  of  Villiers. 

Coke  received  no  reward  for  his  unexampled  baseness.  He 
tried  to  make  his  peace  with  the  King  by  a  number  of  dis- 
graceful judgments  in  the  Star  Chamber.  But  when  his 
efforts  met  no  return,  he  had  himself  returned  to  Parliament 
as  a  patriot.  Dr.  Johnson  must  have  had  Coke  in  mind  when 
he  made  his  famous  definition  of  patriotism  as  "  the  last 
refuge  of  a  scoundrel."  Thirsting  for  revenge  on  Bacon, 
Coke  caused  his  impeachment  and  ruin.  Coke  lived  on  to  be 
a  very  old  man.  Lady  Hatton  lent  humor  to  the  situation  by 
12  White  and  Tudor  Lead.  Cas.  Equity  601. 


19.     ZANE:    THE    FIVE   AGES  699 

constantly  complaining  of  her  husband's  good  health.  At 
last  he  died,  watched  over  by  his  unfortunate  daughter.  He 
made  an  exceedingly  pious  end,  —  thus  exhibiting  his  total 
unconsciousness  of  his  own  true  character. 

Under  Charles  I.,  some  ably  conducted  trials  took  place 
over  the  King's  attempt  to  raise  a  revenue  without  recourse 
to  Parliament.  The  bar  was  independent  enough  to  hold  out 
against  the  power  of  the  Crown.  The  judges  ruled  that  a 
commitment  specifying  no  offense  was  bad.  Another  decision 
prohibited  torture  of  prisoners.  The  rules  of  evidence  were 
not  yet  settled ;  but  in  the  ordinary  criminal  trials,  a  defend- 
ant was  now  held  not  bound  to  give  evidence  against  himself. 
Shakespeare  seems  to  think  the  rule  a  bad  one,  not  to  be 
followed  in  the  Court  of  Heaven ;  for 

"  In  the  corrupted  currents  of  this  world, 
Offence's  gilded  hand  may  shove  by  justice; 
And  oft  'tis  seen  the  wicked  prize  itself 
Buys  out  the  law;   but  'tis  not  so  above; 
There  is  no  shuffling,  there  the  action  lies 
In  his  true  nature;    and  we  ourselves  compell'd, 
Even  to  the  teeth  and  forehead  of  our  faults, 
To  give  in  evidence." 

In  the  famous  Ship  Money  case  of  Hampden  there  was 
a  great  forensic  display.  The  Solicitor  General  spoke  for 
three  days,  the  defendant's  leader  spoke  four  days,  Oliver 
St.  John  for  the  defense  took  two  days,  and  the  Attorney- 
General  replied  in  three  days.  St.  John's  argument  was  con- 
sidered the  finest  that  had  ever  been  heard  in  Westminster 
Hall.  But  this  speech  was  soon  surpassed  by  the  noble  and 
pathetic  plea  of  Strafford  in  his  own  behalf.  At  last  the 
King  himself  was  put  upon  trial.  The  leading  Parliamentary 
lawyers,  Rolle,  St.  John,  and  .Whitelock,  refused  to  sit  in  the 
court.  Bradshaw,  an  able  lawyer,  was  made  Lord  President 
of  the  illegal  tribunal.  The  King's  line  of  defense  was  laid 
out  for  him  by  Sir  Matthew  Hale.  Bradshaw  tried  to  bully 
the  King,  but  was  overwhelmed  by  acute  reasoning,  a  royal 
dignity,  and  a  noble  presence,  by  the  King's  liberality  of 
thought  and  real  eloquence.  In  other  trials,  such  as  those 
of  the  Duke  of  Hamilton,  the  Earl  of  Holland,  Lord  Capel, 


700  V.    BENCH   AND   BAR 

and  Sir  John  Owen,  the  defendants  were  convicted  by  conduct 
as  arbitrary  as  anything  under  the  Tudors.  Serjeant  Glyn 
at  the  trial  of  the  gallant  Penruddock  rivalled  Coke  at  Sir 
Walter  Raleigh's  trial.  The  Protector  Cromwell  cared  little 
for  courts  or  law.  The  very  men  who  had  declaimed  against 
ship  money  saw  Cromwell's  arbitrary  taxation.  Chief  Justice 
Rolle  and  the  judges  attempted  to  try  the  legality  of  such 
a  tax ;  but  Cromwell  sent  for  them  and  severely  reprehended 
their  license,  speaking  with  ribaldry  and  contempt  of  their 
Magna  Charta.  He  dismissed  the  judges,  saying  that  they 
should  not  suffer  lawyers  to  prate  what  it  would  not  become 
them  to  hear.  Serjeant  Maynard,  who  had  argued  against 
the  tax,  was  committed  to  the  Tower,  while  Prynne  suffered 
a  fine  and  imprisonment.  Sir  Matthew  Hale  was  threatened 
by  Cromwell's  government  for  his  strong  defense  of  the  Duke 
of  Hamilton  and  Lord  Capel,  but  Hale  replied  that  he  was 
pleading  in  support  of  the  law,  was  doing  his  duty  to  his 
clients,  and  was  not  to  be  daunted  by  threatenings.  During 
the  Cromwellian  ascendency,  Hale,  at  the  solicitation  of  the 
Royalist  lawyers,  accepted  a  judgeship.  On  the  circuit  he 
tried  and  condemned  one  of  Cromwell's  soldiers  for  the  mur- 
der of  a  Royalist,  and  had  the  prisoner  hanged  so  quickly 
that  Cromwell  could  not  grant  a  reprieve.  He  quashed  a 
panel  of  jurors  when  he  found  that  it  had  been  returned  at 
Cromwell's  orders.  The  Protector,  on  Hale's  return  to  Lon- 
don, soundly  berated  him,  telling  him  that  he  was  not  fit  to 
be  a  judge. 

Many  legal  reforms  were  projected  during  the  Common- 
wealth, but  they  came  to  naught  at  the  Restoration.  An 
attempt  was  made  (among  others)  to  substitute  the  law  of 
Moses  for  the  common  law.  There  was  an  earnest  attempt 
to  abolish  the  Court  of  Chancery,  but  it  was  frustrated  by 
St.  John.  An  act  was  passed  regulating  chancery  practice, 
but  it  was  found  to  be  impracticable.  Most  of  the  better 
class  of  lawyers  were  Royalists  and  ceased  court  practice. 
Confiscation  and  seizures  were  the  order  of  the  day.  But  the 
Royalist  conveyancers,  Orlando  Bridgman  and  Jeffrey 
Palmer,  while  they  would  not  appear  in  court,  enjoyed  an 
immense  chamber  practice  and  by  their  new  devices  of  family 


19.     ZANE:    THE    FIVE    AGES  701 

settlements,  superseding  entails,  preserved  many  a  Royalist 
estate. 

The  Inns  of  Court  during  the  Tudor  and  earlier  Stuart 
reigns  had  continued  to  enjoy  great  prosperity.  From  For- 
tescue's  time  to  Charles  I.,  it  is  almost  impossible  to  point 
to  a  single  lawyer  of  standing  who  had  not  been  prelimi- 
narily educated  at  Oxford  or  Cambridge.  In  the  reign  of 
Queen  Mary  attorneys  and  solicitors  were  forever  excluded 
from  the  Inns.  Henceforth  only  barristers  were  trained  in 
those  institutions,  and  attorneys  became  objects  of  contempt. 
In  fact,  in  an  order  in  16  Charles  II.,  an  attorney  is  called 
"  an  immaterial  person  of  an  inferior  character."  The 
instruction  in  the  Inns  continued  to  be  the  same  as  in  Fortes- 
cue's  time.  The  law  was  now  all  case-law.  Fitzherbert  says 
that  the  whole  Court  agreed  that  Bracton  was  never  taken  for 
an  authority  in  our  law.  In  social  entertainments  the  Inns 
shone.  Costly  feasts,  magnificent  revels,  masks,  and  plays, 
where  the  royal  family  attended,  the  splendid  celebrations  of 
calls  of  Serjeants,  the  feasts  given  by  the  readers,  are  all 
fully  described  in  contemporary  annals.  We  read  of  "  spiced 
bread,  comfits  and  other  goodly  conceits,  and  hippocras," 
and  the  bill  of  supply  of  one  of  the  feasts,  comprising 
"  twenty-four  great  beefs,"  "  one  hundred  fat  muttons," 
"  fifty-one  great  veales,"  "  thirty-four  porkes,"  "  ninety-one 
piggs,"  through  endless  capons,  grouse,  pigeons  and  swans 
to  three  hundred  and  forty  dozen  larks,  shows  that  the  vice 
of  the  time  was  gluttony. 

It  was  found  necessary  during  this  period  to  restrain  the 
students.  Some  of  the  regulations  are  curious,  —  the  pro- 
hibition of  beards  of  over  a  fortnight's  growth,  of  costly 
apparel,  of  the  wearing  of  swords ;  and  the  restraints  on 
sports  point  to  unruly  members  in  the  Inns.  It  was  found 
necessary  to  make  attendance  at  the  moots  compulsory.  The 
standard  of  attainment  was  raised.  Ten  years'  attendance 
was  required  before  a  call  to  the  bar;  this  was  afterwards 
put  back  to  five  years,  and  then  raised  to  seven ;  and  for 
three  years  after  his  call,  a  barrister  was  not  permitted  to 
practice  before  the  courts  at  Westminster. 

The  Commonwealth  time  was   almost  destructive  of  the 


702  V.    BENCH   AND   BAR 

Inns,  but  at  the  Restoration  they  started  on  a  new  career  of 
splendor.  All  the  old  ceremonies  and  practices  were  revived. 
Heneage  Finch,  afterwards  Lord  Nottingham,  revived  the 
readers'  feasts  of  former  days.  He  saved  the  Temple  walk 
from  being  built  upon;  and  his  daily  consumption  of  wine 
offered  an  admirable  example  to  the  deep  drinking  young 
blades  of  the  Restoration. 

The  two  great  lawers  of  Charles  II. 's  reign  were  almost 
exact  opposites.  Finch,  born  of  an  ancient  family,  of  ample 
fortune,  living  in  magnificent  style,  princely  in  his  expendi- 
tures, a  genuine  cavalier,  was  the  very  antithesis  of  the  Puri- 
tanism of  Hale.  His  is  one  of  the  noted  names  on  the  roll  of 
Christ  Church  at  Oxford.  He  is  the  second  of  our  great 
forensic  orators.  Ben  Jonson  has  told  us  of  Bacon's 
impressive  and  weighty  eloquence,  but  it  could  not  be  com- 
pared with  the  silver-tongued  oratory  and  the  graceful 
gestures  of  the  "  English  Roscius."  Finch  passed  through 
the  grade  of  Solicitor-General,  to  the  Attorney-General's 
place,  and  then  became  Lord  Chancellor,  with  the  title  of 
Lord  Nottingham.  He  was  a  model  of  judicial  decorum, 
calm  and  patient  in  hearing,  prompt  in  the  business  of  his 
court,  sitting  to  decide  cases  while  racked  with  the  pain  of 
gout.  Careful  in  the  framing  of  his  judgments,  and  at  the 
same  time,  a  finished  man  of  the  world,  he  stands  unrivaled 
except  by  Lord  Mansfield. 

When  he  came  to  the  marble  chair,  equity  jurisprudence 
was  a  confused  mass  of  unrelated  precedents.  While  he 
invented  nothing  new,  he  introduced  order  into  the  chaos 
and  settled  the  great  heads  of  equity  in  their  enduring  form. 

"  Our  laws  that  did  a  boundless  ocean  seem, 
Were  coasted  all,  and  fathomed  all  by  him." 

He  settled,  finally,  the  restraint  upon  executory  interests,  by 
his  great  ruling  in  the  Duke  of  Norfolk's  case.1  It  has  been 
forgotten  that  Nottingham  overruled  the  three  chiefs  of  the 
common  law  courts  —  North,  Pemberton  and  Montague : — 
sitting  with  him.  North,  becoming  Chancellor,  reversed  the 
case,  but  the  House  of  Lords,  at  the  instance  of  Lord 

*3  Ch.  Cas.  1. 


19.     ZANE:    THE    FIVE    AGES  703 

Jeffreys  (as  great  a  lawyer  as  Nottingham),  restored  the 
first  ruling,  and  reestablished  the  rule  against  perpetuities. 

Sir  Matthew  Hale  is  not  such  an  engaging  figure.  He  was 
rather  a  Puritan,  and  for  thirty-six  years  never  missed 
attendance  at  church  on  Sunday.  He  was  Lord  Chief  Baron 
after  the  Restoration,  and  then  Lord  Chief  Justice.  In  mere 
learning  he  was  without  a  rival.  Lord  Nottingham  has  gen- 
erously spoken  of  Hale's  "  indefatigable  industry,  invincible 
patience,  exemplary  integrity,  and  contempt  for  worldly 
things,"  and  Nottingham  adds,  in  his  stately  way :  "  He  was 
so  absolutely  a  master  of  the  science  of  law,  and  even  of  the 
most  abstruse  and  hidden  parts  of  it,  that  one  may  truly  say 
of  his  knowledge  in  the  law  what  Saint  Augustine  said  of 
Saint  Jerome's  knowledge  of  the  divinity  —  "  Quod  Hiero- 
nymus  nescivit,  nullus  mortalium  unquam  scivit."  Hale's 
preface  to  Rolle's  Abridgment  contains  the  most  helpful 
words  ever  addressed  to  students  of  law.  The  criticism, 
however,  was  urged  against  him  that  he  dispatched  business 
too  quickly.  And  it  is  almost  incredible  that  he  believed  in 
witchcraft  with  the  utmost  ignorant  superstition,  and  tried 
and  caused  to  be  executed  two  poor  old  women,  whom  a 
foolish  jury  under  his  direction  convicted  of  diabolical  pos- 
session.1 It  was  but  a  few  years  later  that  another  woman 
was  tried  for  witchcraft  before  Judge  Powell,  a  merry  and 
witty  old  gentleman.  Her  offence  was  that  she  was  able  to 
fly.  "  Can  you  fly?"  asked  the  judge.  The  crazy  woman 
replied  that  she  could.  "  Well,  then,"  he  said,  "  you  may,  for 
there  is  no  law  against  flying."  And  so  ended  the  trial. 

A  character  of  those  times  was  the  learned  Prynne,  an 
able  lawyer,  a  great  antiquarian  authority.  He  assaulted 
everything,  from  long  hair  and  actresses  to  bishops.  First 
'he  lost  his  ears,  then  he  was  disbarred  and  condemned  to  the 
pillory.  Again  he  lost  what  little  of  his  ears  had  been  left 
from  the  first  shaving.  He  attacked  the  Quakers,  then  he 
suffered  imprisonment  under  Cromwell;  next  he  advocated 
the  proceeding  against  the  regicides,  even  against  those  who 
were  dead,  and  at  last  rounded  out  his  career  as  keeper  of  the 
records  in  the  Tower.  Equal  to  Prynne  in  fearless  constancy 
J6  State  Trials  647. 


704  V.    BENCH   AND   BAR 

was  Judge  Jenkins,  the  author  of  Jenkins*  Centuries,  —  a 
most  curious  series  of  reports. 

It  is  customary  to  represent  the  succession  of  judges  under 
James  II.  to  the  time  of  the  Revolution  of  1688  as  a  most 
ignorant,  depraved,  and  worthless  set  of  men.  But  this 
picture  is  badly  overdrawn.  It  is  true  that  the  stately  and 
dignified  Cavaliers,  like  Lord  Clarendon  or  Nottingham,  were 
passing  away,  and  that  their  successors  were  hardly  their 
equals.  Scroggs,  the  first  Chief  Justice,  owed  his  elevation 
to  his  ability  as  a  forensic  orator.  Once  from  the  bench  he 
told  the  listening  mob  that  "  the  people  ought  to  be  pleased 
with  public  justice,  and  not  justice  seek  to  please  the  people. 
Justice  should  flow  like  a  mighty  stream,  and  if  the  rabble, 
like  an  unruly  wind,  blow  against  it,  the  stream  they  made 
rough  will  keep  its  course."  And  so  Scroggs  rolled  out  his 
periods,  making  a  splendid  plea  for  judicial  independence. 
It  is  a  sign  of  the  times  that  high  prerogative  rulings, 
which  seemed  perfectly  natural  under  Elizabeth,  should  arouse 
such  violent  public  resentment.  Scroggs  lost  all  influence 
with  juries ;  so  he  was  dismissed,  and  Francis  Pemberton  took 
his  place.  This  man,  born  to  a  large  fortune,  had  squandered 
it  within  a  few  years  after  attaining  his  majority,  and 
awoke  one  day  to  find  himself  imprisoned  under  a  mass  of 
judgments.  But  in  his  five  years'  imprisonment  he  made 
himself  a  consummate  lawyer.  He  obtained  a  release 
from  prison,  and  soon  acquired  eminence  and  wealth  at  the 
bar. 

But  not  long  after  Pemberton's  elevation  to  the  bench, 
it  was  determined  to  forfeit  the  charters  of  the  City  of 
London,  so  as  to  gain  control  of  the  panels  of  jurors,  who 
were  selected  by  a  sheriff,  elective  under  the  charters.  This 
advice  had  been  given  to  the  King  by  the  noted  special 
pleader,  Edmund  Saunders.  This  remarkable  man  had  had 
a*  singular  career.  Born  of  humble  parents,  he  had  run  away 
from  home,  drifted  to  London,  and  found  shelter  as  an 
errand  boy  at  Clement's  Inn.  He  learned  to  write,  became 
a  copying  clerk,  and  in  this  way  gained  an  insight  into 
special  pleading.  The  attorneys  induced  him  to  enroll  him- 
self at  an  Inn  of  Court.  In  due  time  a  barrister,  he  made 


19.     ZANE:    THE    FIVE    AGES  705 

himself  the  greatest  master  of  common  law  pleading  that 
system  has  ever  known.  He  had  no  political  opinions,  nor  did 
he  seek  riches  or  advancement.  Witty,  genial  and  gay,  he  had 
always  around  him  a  crowd  of  students,  with  whom  he  was 
putting  cases,  answering  objections  and  debating  abstruse 
points.  His  physical  appearance  was  repulsive.  Brandy 
was  his  constant  drink,  varied  by  a  pot  of  ale  always  near 
him.  Drunkenness  and  gluttony  had  caused  a  general  decay 
of  his  body.  Hideous  sores  and  an  offensive  stench  made  his 
presence  an  affliction.  Yet  the  government  had  such  need  of 
his  services  that  North,  the  Lord  Keeper,  actually  asked  him 
to  dinner.  Saunders  drew  the  pleadings  in  the  great  Quo 
Warranto  case,  and  caused  the  attorneys  for  the  City  of 
London  to  plead  upon  a  point  where  they  were  sure  to  be 
defeated.  Thereupon  Saunders  drew  up  an  ingenious  repli- 
cation, to  which  the  city  demurred.  Just  as  the  cause  was 
about  €o  be  argued  Pemberton  was  removed  and  Saunders 
was  appointed,  and  (incredible  as  it  may  seem)  he  then 
heard  argument  upon  his  own  pleadings.  The  cause  was 
argued  for  two  terms,  but  when,  at  the  third  term,  judgment 
was  delivered,  Saunders  lay  dying  in  his  lodgings.  His  best 
memorial  is  his  book  of  reports,  the  most  perfect  specimen 
of  such  work  in  our  legal  literature. 

Saunders  was  succeeded,  after  an  interval,  by  the  noted 
Jeffreys,  popularly  considered  the  worst  judge  that  ever  sat 
in  Westminster  Hall.  But  this  popular  belief  cannot  be  taken 
in  place  of  the  sober  facts.  He  was  of  an  ancient  family  in 
Wales.  He  received  the  usual  education  of  his  time,  and  at- 
tended at  Trinity  College,  Cambridge.  He  studied  at  the 
Middle  Temple,  and  was  admitted  to  the  bar  at  the  age  of 
twenty.  He  at  once  leaped  to  a  commanding  position.  He 
was  made  Common  Serjeant,  and  later  Recorder  of  London. 
This  was  due  to  his  splendid  legal  talents.  He  had  one  of 
those  rare  minds  which  under  great  masses  of  evidence  seize 
upon  the  real  issue.  He  had  a  marvellous  skill  in  advocacy, 
and  a  flowing,  impassioned,  magnetic  eloquence.  Added  to 
this  was  an  overwhelming  bitterness  of  denunciation  that 
sometimes  appalled  his  hearers.  We  know  that  Sir  Matthew 
Hale  was  a  good  judge  of  lawyers,  and  we  are  told  that 


706  F.     BENCH   AND   BAR 

Jeffreys  gained  as  great  an  ascendency  over  Hale  as  ever 
counsel  had  over  a  judge. 

To  his  intellectual  gifts,  Jeffreys  added  a  noble  and  stately 
presence.  There  are  three  portraits  of  him;  the  first  rep- 
resents him  when  thirty  years  old,  the  next  is  of  Jeffreys  in 
his  full  robes  as  Lord  Chief  Justice,  the  last  shows  us  the  man 
in  his  robes  as  Chancellor.  It  is  a  very  noble,  delicate,  and 
refined  face  that  looks  out  from  Kneller's  canvas.  There  is 
birth,  breeding,  distinction  in  every  line.  He  must  have  been 
a  great  lawyer ;  for  to  Hale's  testimony  we  may  add  that  of 
the  accomplished  judge,  a  confirmed  Whig,  Sir  Joseph  Jekyll ; 
of  Speaker  Onslow,  who  bears  testimony  to  his  ability  and 
uprightness  in  private  matters ;  of  Roger  North,  who  hated 
Jeffreys  but  was  forced  to  admit :  "  When  he  was  in  temper 
and  matters  indifferent  came  before  him,  he  became  his  seat 
of  justice  better  than  any  other  I  ever  saw  in  his  place."  But 
best  witnesses  of  all  are  his  recorded  judgments.  The  incom- 
parable stupidity  of  Vernon,  the  reporter,  has  destroyed  the 
value  of  Eustace  vs.  Kildare  and  of  Attorney  General  vs. 
Vernon ; 1  but  his  decision  in  the  East  India  Company's  case 
is  admitted  by  all  lawyers  to  be  a  marvel  of  close  legal  rea- 
soning. In  the  House  of  Lords  he  saved  the  Duke  of  Nor- 
folk's case,  and  even  his  political  enemies  after  the  Revolu- 
tion did  not  reverse  his  cases.  A  master  of  the  common  law, 
he  was  yet  a  great  chancellor.  He  promulgated  a  set  of  rules 
in  chancery,  the  best  since  Bacon's  time.  Other  of  his  deci- 
sions can  be  found  in  the  reports  of  Sir  Bartholomew 
Shower,  an  excellent  lawyer. 

No  doubt  Jeffreys  was  a  hard  drinker.  So  was  Lord  Eldon, 
so  were  many  able  lawyers  in  our  own  country.  He  was 
no  doubt  savage  and  overbearing  at  times.  He  rode  rough- 
shod over  defendants  and  their  counsel.  He  hated  Puri- 
tans and  all  their  works.  He  was  often  cruel  and  remorse- 
less. But  even  Lord  Hale  enlivened  trials  by  breaking  forth 
upon  witnesses:  "Thou  art  a  perjured  knave,  a  very  vil- 
lain !  Oh,  thou  shameless  villain !  "  Jeffreys'  "  Bloody  As- 
sizes "  is  the  greatest  stain  on  his  memory ;  but  no  innocent 
person  was  punished  in  those  trials.  The  worst  that  can  be 
1 1  Vernon  419,  369. 


19.    ZANE:   THE   FIVE    AGES  707 

said  of  Jeffreys  may  be  read  in  Macaulay's  History.  Much 
of  it  is  true ;  some  of  it  is  untrue ;  but  it  all  belongs  to  the 
spirit  of  that  age  of  savage  disputes  and  rancorous  political 
hatreds.  Yet,  after  all,  Jeffreys  was  but  one  of  the  five 
judges  who  sat  together  on  that  circuit. 

To  see  Jeffreys  at  his  best,  we  should  see  him  in  the  trial 
of  Lord  Grey  de  Werke.  Jeffreys'  skill  and  adroitness  in 
putting  in  the  evidence  against  the  great  Whig  lord,  the 
brazen  seducer  of  his  own  wife's  sixteen-years-old  sister ;  his 
gentleness  and  exquisite  suavity  toward  his  witnesses,  his 
few  words  of  apology  to  the  court  for  the  tears  of  the  vic- 
tim's mother,  are  models  of  forensic  decorum.  In  his  tact, 
his  delicate  management,  never  a  word  too  much,  now  and 
then  putting  a  question  \o  bring  out  some  point  that  had 
been  overlooked,  Jeffreys  shows  throughout  the  skill  of  the 
master. 

He  prosecuted  Lord  William  Russell  and  convicted  him. 
His  great  arts  of  advocacy  simply  overwhelmed  the  de- 
fendant; for  Russell  had  a  fair  trial,  and  the  jury  was 
calmly  charged  by  Pemberton.  Jeffreys  as  judge  tried 
Algernon  Sidney,  who  was  convicted  upon  evidence.  Noth- 
ing in  Jeffreys'  career  can  compare  with  Coke's  conduct  at 
Raleigh's  trial,  or  with  Glyn's  when  he  judicially  murdered 
Penruddock.  Even  in  Lady  Lisle's  case,  she  was  condemned 
on  actual,  credible  testimony,  offered  in  accordance  with  the 
rules  of  evidence. 

When  Jeffreys  returned  from ,  his  campaign  in  the  west 
he  was  made  Lord  Chancellor  and  given  a  peerage.  Wright 
succeeded  as  Lord  Chief  Justice,  and  before  him  came  on 
the  famous  trial  of  the  Seven  Bishops.  The  besotted  King 
attempted  to  abolish  the  Test  Acts  by  proclamation.  Both 
dissenters  and  churchmen. united  against  a  declaration  which 
would  tolerate  Roman  Catholics.  The  bishops  remonstrated, 
and  the  King,  against  Jeffreys'  advice,  caused  the  bishops 
to  be  indicted.  The  trial  came  on  before  the  King's  Bench. 
The  defense  mustered  a  great  array  of  counsel.  Pember- 
ton, a  cashiered  chief  justice,  Levinz,  another  dismissed 
judge,  who  had  gone  the  bloody  circuit  with  Jeffreys,  Hen- 
eage  Finch,  son  of  Lord  Nottingham,  and  Somers,  after- 


708  P.     BENCH   AND   BAR 

wards  the  great  Chancellor,  appeared  for  the  defense.  Such 
a  throng  never  appeared  again  at  a  trial  in  Westminster 
Hall,  until  Warren  Hastings  came  back  from  India  to  meet 
an  impeachment.  The  bishops  were  acquitted,  and  Wright 
and  his  fellows  were  disgraced. 

The  King  filled  up  his  court  again;  and  the  legality  of 
martial  law  in  the  army  then  came  on  for  trial  before  Chief 
Justice  Herbert.  At  that  day  in  England,  in  case  of  a 
desertion  or  mutiny,  the  army  officers  were  powerless,  unless 
they  called  in  the  sheriff.  But  Chief  Justice  Herbert  re- 
fused to  yield  to  the  King's  wishes,  and  held  that  the  army 
could  not  be  governed  by  martial  law.  Again  the  King 
cleaned  out  his  court.  One  of  his  new  tools  was  Christopher 
Milton  (a  brother  of  the  poet).  The  King  called  upon  his 
judges  to  hold  that  the  King  by  proclamation  could  dispense 
with  acts  of  Parliament.  Jones,  the  Chief  Justice,  refused. 
He  told  the  King  that  he  was  mortified  to  think  that  his 
Majesty  thought  him  capable  of  a  judgment  which  none 
but  an  ignorant  or  dishonest  man  could  give.  The  King 
said  that  he  was  determined  to  have  twelve  lawyers  for 
judges,  all  of  his  way  of  thinking.  Jones  replied:  "Your 
Majesty  may  find  twelve  judges  of  your  mind,  but  never 
twelve  lawyers."  But  the  King  had  now  exhausted  the  pub- 
lic indulgence  and  he  was  soon  in  flight  to  France. 

It  would  perhaps  seem,  from  the  record  of  this  period, 
that  little  good  could  have  been  accomplished  in  the  devel- 
opment of  the  law.  But  this  inference  would  be  an  error. 
We  have  noticed,  at  the  opening  of  this  epoch,  a  general 
feeling  that  jury -trial  was  worthless.  The  work  accdm- 
plished  by  this  age  was  to  improve  the  methods  of  jury  trials 
so  as  to  make  them  promotive  of  justice.  The  first  thing 
done  in  this  later  period  was  to  make  the  jury  independent, 
by  establishing  the  rule  that  they  could  not  be  fined  or 
imprisoned  for  what  was  conceived  to  be  a  false  verdict. 
The  second  improvement  was  to  give  the  courts  power  to 
grant  new  trials,  and  thus  to  place  the  verdict  under  the 
control  of  the  judge.  The  final  improvement  was  to  estab- 
lish the  rules  of  evidence.  These  rules  were  so  framed  and 
moulded  as  to  exclude  from  the  jury  all  testimony  which 


19.     ZANE:    THE    FIVE    AGES  709 

would  improperly  influence  them,  or  which  did  not  depend 
for  its  credibility  upon  the  veracity  of  a  sworn  witness. 
Above  all,  the  jury  was  required  to  proceed  solely  upon  evi- 
dence offered  in  open  court,  which  had  been  subjected  to  the 
test  of  a  cross-examination.  It  was  in  the  bad  times  of  the 
Stuarts  that  these  rules  were  settled.  Singularly  enough, 
the  first  case  that  is  authentic,  in  excluding  hearsay,  is  a 
decision  by  Lord  Jeffreys.  Although  the  rules  of  evidence 
were  amplified  by  Lord  Mansfield,  they  have  not  been 
changed,  except  by  statute,  from  that  day  to  this.  The 
greatest  of  forensic  orators  said  in  Hardy's  case :  "  The 
rules  of  evidence  are  founded  in  the  charities  of  religion, 
in  the  philosophy  of  nature,  in  the  truths  of  history,  and 
in  the  experience  of  common  life."  Surely,  a  generation 
of  lawyers  which  created  and  formulated  these  rules  is  en- 
titled to  some  grateful  remembrance,  and  of  that  generation, 
the  greatest  common  lawyer  was,  undoubtedly,  the  outlawed 
Jeffreys. 

V.     The  Period  of  Reform: 
From  William  III.  to  Victoria  l 

As  soon  as  the  judges  who  had  served  under  James  II. 
had  been  removed,  after  the  Revolution  of  1688,  a  return 
was  made  to  the  old  Lancastrian  doctrine  that  judges  hold 
their  office  during  good  behavior,  not  during  the  pleasure 
of  the  crown.  Some  of  the  judges  who  had  refused  to  obey 
the  mandates  of  the  King,  and  in  consequence  had  suffered 
dismissal,  were  now  restored.  Since  the  Revolution  there 
has  never  been  a  removal  of  a  judge  by  the  executive  power, 

1  The  authorities  for  this  period  are  too  numerous  to  be  named  here. 
Lord  Campbell's  Lives,  both  of  Chief  Justices  and  of  Lord  Chancellors, 
are  very  full.  His  lives  of  Mansfield  and  Eldon  are  excellent;  but  his 
Brougham  and  Lyndhurst  are  pitiable.  Foss  is  reliable.  Welsbv's  Lives 
of  Eminent  English  Judges,  Roscoe's  Lives  of  Eminent  Lawyers,  Cook- 
sey's  Life  of  Somers,  Twiss'  Life  of  Eldon,  Brougham's  Autobiography, 
Arnould's  Memoir  of  Denman,  Martin's  Life  of  Lyndhurst,  Atlay's 
Victorian  Chancellors,  and  Woolrych's  Lives  of  Eminent  Serieants, 
may  be  consulted.  A  Century  of  Law  Reform  summarizes  the  changes 
made  in  the  law,  while  Dicev's  Law  atid  Opinion  in  England  shows  the 
spirit  underlying  the  legal  changes.  There  are,  of  course,  endless  other 
authorities  for  this  period,  including  almost  innumerable  magazine  arti- 
cles. Bowring's  edition  of  Bentham's  works,  with  his  Memoirs  prefixed, 
is  valuable. 


710  V.     BENCH    AND    BAR 

nor  a  single  known  instance  of  a  corrupt  decision.  The 
overwhelming  importance  of  the  House  of  Commons  has 
since  1688  given  the  great  prizes  of  the  profession  to  law- 
yers who  have  been  useful  to  their  party  in  Parliament.  The 
regular  preferment  for  an  able  lawyer  has  been  from  a  seat 
in  the  Commons  to  the  solicitor-generalship,  then  to  the 
attorney-general's  place,  and  finally  to  the  chiefship  of  one 
of  the  law  courts  or  to  the  office  of  Lord  Chancellor.  But 
the  professional  and  political  preferment  has  invariably 
come  as  the  reward,  not  the  cause,  of  professional  eminence. 
Lord  Somers,  Sir  John  Holt,  Lord  Talbot,  and  Lord  Hard- 
wicke  were  very  great  lawyers  before  they  received  any 
political  reward.  Later  Mansfield,  Thurlow,  Eldon,  Erskine, 
Loughborough,  Melville,  and  Ellenborough  had  become  lead- 
ers of  the  bar,  before  they  entered  upon  a  parliamentary 
career.  In  the  last  century,  Lyndiiurst,  Brougham,  Tenter- 
den,  Cottenham,  Denman,  Campbell,  Westbury,  Cockburn, 
Selborne,  Cairns,  Coleridge,  and  Russell  all  gained  their 
professional  and  judicial  preferment  by  great  legal  attain- 
ments. The  office  of  Master  of  the  Rolls  has  been  consid- 
ered one  of  the  great  professional  rewards ;  but  the  puisne 
judges  in  the  various  common  law  courts,  and  later  the  vice- 
chancellors,  and  still  later  the  lords  justices  of  appeal,  have 
not  had  any  immediate  connection  with  parliamentary  life. 
The  wealth  of  information  which  we  have  in  regard  to 
lawyers  and  judges  after  the  Revolution  enables  us  to  see 
far  more  clearly  than  in  the  case  of  the  older  judges  the 
characters  of  the  various  great  lawyers.1  But  no  doubt 
the  same  phenomena  are  noticeable  in  the  preferment  of 
lawyers  to  the  bench  that  we  should  find  in  the  earlier  cen- 
turies if  we  had  more  accurate  information.  The  race  has 
not  always  been  to  the  swift  nor  the  battle  to  the  strong. 
Often  a  leather-lunged,  heavy-witted  mediocrity,  distancing 
brilliant  competitors,  has  gained  a  seat  upon  the  bench. 
Among  the  judges  and  lawyers,  the  same  traits  we  notice 
to-day  were  prevalent  in  these  former  times.  The  jealousies 
among  lawyers,  the  favoritism  of  judges  toward  some  chosen 

1  No  attempt  will  he  made  here  to  do  anything  more  than  indicate 
the  attitude  of  preat  lawyers  toward  reforms  in  the  law. 


19.     ZANE:    THE    FIVE    AGES  711 

member  of  the  bar,  are  continually  appearing.  A  mediocre 
individual,  uttering  dull  wooden  platitudes  from  the  bench, 
has  gained  the  reputation  of  a  great  judge,  because  his 
mind  was  on  a  level  with  that  of  a  majority  of  the  bar, 
although  to  the  ablest  lawyers  his  stupidity  has  been  a  con- 
stant irritation.  The  celebrated  advocate,  on  the  other 
hand,  in  certain  instances,  when  he  has  reached  the  bench, 
has  known  too  much  law  for  the  ordinary  practitioner ;  he 
has  been  too  quick,  has  leaped  to  conclusions,  has  taken  one 
side  or  the  other,  and,  unconscious  of  partiality,  has  been 
practically  unfit  to  properly  weigh  conflicting  evidence  or 
authorities.  The  laborious  lawyer,  who  has  attained  the 
bench,  has  often  begun  a  hunt  for  foolish  and  irrelevant 
matters,  and  has  impeded  business  by  a  morbid  inability  to 
formulate  his  own  conclusions.  The  haughty,  impatient, 
arbitrary,  and  overbearing  judge,  insolent  to  the  bar  and 
savage  toward  the  witnesses,  has  not  been  wanting.  The 
judge  who  has  proclaimed  his  desire  for  less  law  and  more 
justice,  who  has  brayed  about  the  people's  and  the  poor 
man's  rights,  and  has  violated  settled  principles  and  become 
a  judicial  demagogue,  has  needed  the  rebuke  and  correction 
of  higher  tribunals.  Through  all  judicial  history,  it  is  ap- 
parent that  the  true  judicial  mind,  which  hears  the  whole 
case  before  it  decides,  which  is  capable  of  suspending  judg- 
ment until  in  possession  of  every  consideration  of  value, 
which  is  absolutely  unaffected  by  mere  temporary  or  irrel- 
evant matters,  which  looks  at  every  case  both  from  the 
standpoint  of  the  general,  fixed,  and  settled  rules  of  law, 
but  at  the  same  time  with  an  acute  sense  for  right  and  a 
real  desire  to  advance  justice,  is  the  rarest  type  of  the  human 
intellect. 

But  one  fact  about  lawyers  is  a  noticeable  one.  For 
centuries  the  common-law  lawyers  had  been  a  race  of  men 
who  took  little  interest  in  any  science,  outside  the  common 
law  itself.  Noticing  this  narrowness  of  mind  joined  to  acute 
understanding  and  wide  learning  in  their  own  field,  the  great 
scholar  Erasmus  had  remarked  of  the  lawyers  of  Henry  VII. 
and  Henry  VIII.,  that  they  were  "  doctissimum  genus  indoc- 
tissimorum  hom'inum."  So  far  as  we  can  ascertain,  few  of 


712  V.     BENCH    AND    BAR 

them  knew  anything  of  any  other  system  of  law.  But  a 
change  was  beginning  to  appear.  Chief  Justice  Vaughan 
in  Charles  II. 's  reign  was  once  sitting  in  his  court  between 
his  two  puisnes,  when  a  question  of  canon  law  arose.  Both 
puisnes  with  some  pride  at  once  disclaimed  any  knowledge 
of  that  learning,  but  the  Chief  Justice,  holding  up  his  hands, 
exclaimed :  "  In  God's  name,  what  sin  have  I  committed, 
that  I  am  condemned  to  sit  here  between  two  men,  who 
openly  admit  their  ignorance  of  the  canon  law?"  Lord 
Nottingham  had  illustrated  many  of  his  decisions  by  refer- 
ences to  the  civil  law.  Holt  obtained  the  reputation  of 
enormous  learning,  by  his  knowledge  of  the  Roman  law. 
In  short,  from  the  Revolution  onwards  it  will  be  found  that 
the  greatest  of  English  lawyers  are  turning  to  the  Roman 
jurisprudence  and  grafting  its  rules  upon  the  indigenous 
law.  Even  Bracton  comes  into  his  own  again,  as  the  one 
worthy  writer  upon  our  jurisprudence. 

As  we  have  noted  in  preceding  essays,  the  law  had  hitherto 
attempted  its  own  reform.  Without  the  aid  of  statutes, 
the  immense  array  of  common-law  actions  had  been  trans- 
formed into  the  few  actions  which  we  have  in  contract,  in 
tort,  and  for  the  recovery  of  specific  property.  The  whole 
chancery  system  was  a  natural,  not  a  legislative  growth. 
Even  where  statutes  had  attempted  some  interference  with 
the  law,  they  had  produced  little  result.  A  fact  that  is  most 
difficult  for  the  lay  mind,  or  for  the  inadequately  informed 
legal  mind,  to  comprehend,  but  is  proven  by  the  history  of 
the  law,  is  that  the  distinctions  between  law  and  equity,  the 
distinctions  between  forms  of  action,  inhere  in  the  very 
nature  of  duties  and  rights  and  cannot  be  obliterated  by 
legislation.  While  the  procedure  may  be  generalized,  while 
the  forms  of  actions  may  be  reduced  to  one  general  form, 
while  but  one  tribunal  may  be  provided  for  applying  to  a 
controversy  all  the  relevant  rules  furnished  by  the  law, 
nevertheless  we  must  still  talk  of  contract  and  tort,  of  law 
and  equity,  of  damages  and  specific  relief. 

The  Revolution  produced  no  changes  in  the  legal  pro- 
cedure, except  two.  The  first  gave  to  persons  charged  with 
high  treason  the  benefit  of  counsel  and  the  right  to  produce 


19.     ZANE:    THE    FIVE    AGES  713 

witnesses;  but  as  to  all  defendants  prosecuted  for  felony 
the  age  was  content  to  believe  that  the  government  would 
produce  all  the  witnesses  and  that  the  presiding  judge  would 
act  as  counsel  for  the  prisoner.  The  second  was  a  statute 
of  jeofails  proposed  by  the  new  Chancellor,  Lord  Somers. 
Many  of  the  original  provisions  of  the  bill  were  cut  out 
by  amendments,  but  as  it  passed  it  contained  some  improve- 
ments. It  required  a  special  demurrer  to  reach  errors  of 
form,  but  the  procedure  was  practically  already  in  that  con- 
dition. It  saved  the  statute  of  limitations  from  running 
in  favor  of  persons  absent  from  the  realm.  It  gave  the 
creditor  the  right  to  sue  upon  the  bond  given  to  the  sheriff 
for  the  release  of  the  debtor.  It  prohibited  the  issuance 
of  process  in  chancery  until  the  filing  of  the  bill.  This  last 
requirement  merely  enacted  a  chancery  rule  of  Lord  Jef- 
freys. But  a  really  important  feature  of  the  new  law  was 
that  a  defendant  was  given  the  right  to  plead  to  the  dec- 
laration as  many  pleas  as  he  had  defences.  Another  pro- 
vision enabled  the  grantee  of  land  to  sue  a  tenant  in  posses- 
sion without  proving  an  attornment.  There  were  other  pro- 
visions of  the  law,  but  the  foregoing  show  its  general  scope. 
After  its  passage  the  energies  of  reform  were  exhausted, 
and  all  future  changes  and  improvements,  until  the  Ben- 
thamite agitation,  were  made  by  the  judges  themselves. 

The  new  Chief  Justice,  Sir  John  Holt,  had  carefully 
studied  the  civil  law.  He  was  able  to  introduce  much  of  the 
law  merchant  under  the  guise  of  custom.  Holt's  decisions 
became  a  part  of  the  common  law,  although  the  form  in 
which  the  change  was  made  rendered  it  necessary  in  many 
of  our  States  to  provide  by  statute  for  the  rights  of  the 
indorsee  of  negotiable  paper.  Under  other  heads  of  the 
law,  the  same  judge  was  able  to  assist  the  narrow  rules  of 
the  common  law  by  the  enlightened  distinctions  of  the  civil 
law.  In  Coggs  vs.  Bernard  l  the  mediaeval  law  of  assumpsit, 
shown  in  the  opinions  of  the  puisnes,  met  the  civil  law  in 
the  opinion  of  Holt,  and  Bracton  was  rehabilitated  by  the 
Chief  Justice  as  an  authority  in  the  English  law. 

The  beginnings  of  a  law  of  agency  are  apparent  in  the 
»Ld.  Raym.  909. 


714  V.     BENCH    AND    BAR 

decisions  upon  the  new  business  of  banking.  During  the 
Middle  Ages  and  up  to  the  Restoration,  the  strong  boxes 
of  the  merchants  and  landowners  and  their  bailiffs  provided 
the  only  banking  facilities ;  but  the  practice  adopted  by 
goldsmiths  of  keeping  the  money  of  depositors,  and  the  use 
of  orders  upon  goldsmiths,  which  are  our  modern  bank 
checks,  came  into  vogue.  The  notes  of  goldsmiths  began 
circulating  as  money,  while  the  Bank  of  England,  which 
was  founded  soon  after  the  Revolution,  began  to  issue  its 
notes.  The  Childs'  banking  house,  originally  a  goldsmith's 
shop,  still  remains  as  the  oldest  banking  business  in  Eng- 
land. 

The  earlier  cases  l  treat  all  questions  of  agency  in  the 
terms  of  the  law  of  master  and  servant.  Historically,  of 
course,  it  is  impossible  to  separate  the  law  of  servants  from 
that  of  agents;  yet  we  now  recognize  the  plain  distinction 
in  legal  usage  that  the  word  "  servant "  is  used  only  in  re- 
gard to  a  liability  in  tort,  while  the  word  "  agent  "  is  used 
as  to  a  liability  arising  out  of  a  contract  or  its  correlative, 
deceit.  The  word  "  agent,"  borrowed  from  the  continental 
jurisprudence,  gradually  came  into  common  use,  but  the 
manner  of  the  development  of  the  law  of  agency  has  much 
to  do  with  the  confusion  which  arises  even  to-day  from  the 
failure  to  discriminate  between  an  agent  and  a  servant,  in 
the  above  sense. 

In  1733,  during  the  chancellorship  of  Lord  King,  the  law- 
yers were  finally  compelled  to  use  their  mother  tongue.  The 
record  now  spoke  in  English  instead  of  in  Latin,  and  the 
declaration  and  subsequent  pleadings  entered  upon  the  roll 
now  became  literal  translations  of  the  old  Latin  forms.  The 
advocates  of  the  bill  were  forced  to  overcome  a  strong  oppo- 
sition from  the  judges.  Lord  Chief  Justice  Raymond  on 
behalf  of  all  the  judges  opposed  the  change.  In  later  times 
both  Blackstone  and  Ellenborough  regretted  the  Act.  El- 
lenborough  asserted  that  it  had  a  tendency  to  make  attorneys 
illiterate ;  but  surely  a  man  must^  be  misguided,  indeed,  who 
considers  "  law  Latin  "  a  literary  language. 

'Ward  vs.  Evans,  2  Salk.  442;  Thorald  vs.  Smith,  11  Mod.  71,  87; 
Nickson  vs.  Brohan,  10  Mod.  109. 


19.     ZANE:    THE    FIVE    AGES  715 

The  influence  of  the  civil  law  was  constantly  increasing. 
Lord  Talbot,  the  best  beloved  of  all  the  English  chancellors, 
was  learned  in  the  civil  law.  Lord  Hardwicke  studied  the 
Corpus  Juris  Civilis  and  the  Commentaries  of  Vinnius  and 
of.  Voet.  Lord  Camden  pursued  the  same  systematic  study 
of  the  civil  law.  Many  of  Thurlow's  judgments  are  adorned 
by  illustrations  taken  from  the  civil  law ;  though  it  is  said 
that  those  portions  of  his  opinions  were  supplied  by  the 
learned  Hargrave,  who  acted  as  Thurlow's  "  devil  "  for  some 
years. 

Yet  none  of  these  men  did  anything  for  law  reform. 
Hardwicke,  as  great  a  chancellor  as  Nottingham  or  Eldon, 
never  proposed  a  single  reform.  Henry  Fox,  speaking  of 
Hardwicke,  said :  "  Touch  but  a  cobweb  of  Westminster  Hall, 
and  the  old  spider  of  the  law  is  out  upon  you,  with  all  his 
younger  vermin  at  his  heels."  Lord  Camden  spent  his  ener- 
gies in  an  attempt  to  make  the  jury  judges  of  both  law  and 
fact  in  prosecutions  for  libel.  In  our  helplessness  in  the 
presence  of  unjustifiable  libels  on  every  sort  of  person,  we 
are  to-day  much  inclined  to  regret  his  work  and  the  sub- 
sequent legislation.  Camden's  insistence  upon  punitive  dam- 
ages has  made  a  large  figure  in  the  subject  of  our  damage 
law.  Lord  Thurlow  invented  and  perfected  the  equitable 
doctrine  as  to  the  separate  estate  of  married  women,  which 
is  the  basis  of  to-day's  married-women  statutes.  Lord 
Loughborough's  attitude  toward  law  reform  is  defined  by 
his  undisguised  horror  of  Bentham;  while  Lord  Eldon 
steadily  set  his  face  against  every  proposal  of  reform. 

The  eighteenth  century  in  Europe  was  the  age  of  a  benev- 
olent autocracy  in  politics  and  a  cultivated  optimism  in 
literature.  The  latter  trait  is  markedly  apparent  in  Eng- 
land in  the  legal  sphere. 

The  great  mass  of  the  nation  and  of  the  lawyers  was 
amply  satisfied  with  the  English  constitution  and  its  laws. 
The  language  used  by  the  worshippers  of  our  own  consti- 
tution is  apparently  borrowed  from  the  older  worship  of 
the  English  constitution.  Blackstone  delivered  his  famous 
lectures  at  Oxford  in  1763,  and  published  them  from  1765 
to  1769.  In  a  broad  and  comprehensive  way,  with  ample 


716  V.     BENCH    AND    BAR 

learning,  he  sketched  the  whole  field  of  the  law.  The  literary 
charm  of  his  easily  flowing  periods  made  his  Commentaries 
general  reading  among  even  laymen.  Criticism  had  not  dem- 
onstrated any  of  Blackstone's  errors  or  fallacies.  English- 
men, reading  the  lectures,  swelled  with  pride  to  hear  that 
"  of  a  constitution,  so  wisely  contrived,  so  strongly  raised, 
and  so  highly  finished,  it  is  hard  to  speak  with  that  praise, 
which  is  so  justly  and  severely  its  due."  After  a  description 
of  its  solid  foundations,  its  extensive  plan,  the  harmony  of 
its  parts,  the  elegant  proportion  of  the  whole,  Blackstone 
with  impressive  eloquence  exhorted  his  countrymen :  "  To 
sustain,  to  repair,  to  beautify  this  noble  pile,  is  a  duty  which 
Englishmen  owe  to  themselves,  who  enjoy  it,  to  their  ances- 
tors, who  transmitted  it,  to  their  posterity,  who  will  claim 
at  their  hands  this  the  best  birthright  and  the  noblest  in- 
heritance of  mankind." 

But  even  as  Blackstone  was  writing  these  sonorous  peri- 
ods, two  great  reformers  were  at  work.  One  of  them,  Lord 
Mansfield,  was  working  by  the  slow  and  careful  method  of 
judicial  legislation.  The  other,  Jeremy  Bentham,  was  stor- 
ing up  that  great  supply  of  reforming  material,  which  was 
to  supply  Brougham  and  Romilly  in  the  next  generation. 
Mansfield's  work  is  not  found  in  the  statutes ;  it  is  recorded 
inr  the  law  reports.  Bentham  derided  the  judge-made  law, 
and  maintained  that  all  the  law  should  be  written  on  the 
statute  books.  Mansfield  followed  the  traditional  practice 
of  the  English  lawyer;  Bentham  turned  to  the  continental 
codifiers.  Mansfield  extended  and  transformed  old  princi- 
ples, building  up  whole  branches  of  the  law  by  the  expan- 
sion of  accepted  rules.  Bentham's  idea  of  a  change  was  to 
wipe  out  all  existing  law,  by  a  set  of  codes  whose  words 
should  be  the  sole  rule  of  decision. 

William  Murray,  the  first  Earl  of  Mansfield,  was  born  in 
1705.  The  fates  conspired  to  make  him  the  greatest  of 
lawyers.  His  family  was  almost  the  oldest  in  Scotland. 
Compared  with  these  de  Moravias  or  Murrays,  the  Bourbons, 
the  Hapsburgs,  and  the  Hohenzollerns  are  things  of  yester- 
day ;  even  the  house  of  Savoy  is  not  older.  A  younger 
branch  of  the  Murray  family  had  the  title  of  Viscount  Stor- 


19.     ZANE:    THE    FIVE    AGES  717 

mont,  and  the  Chief  Justice  was  a  younger  son  of  that  house. 
Early  in  life  he  was  sent  to  England,  to  be  educated,  and 
Dr.  Johnson  always  accounted  for  his  marvellous  capacity 
by  saying  that  "  much  may  be  made  of  a  Scotchman,  if  he 
is  caught  young."  The  youth  was  carefully  educated  at 
Winchester  School,  and  then  at  Christ  Church,  Oxford.  He 
was  entered  at  Lincoln's  Inn,  and  while  there  carefully 
studied  the  civil  law;  he  always  maintained  it  to  be  the 
foundation  of  jurisprudence.  He  studied  with  no  less  care 
the  common  law,  but  he  had  no  particular  reverence  for  it. 
Its  oracle,  Coke,  he  disliked;  but  he  took  pleasure  in  Brae- 
ton  and  Littleton.  He  was  thoroughly  conversant  with  the 
commercial  code  of  France.  His  knowledge  of  ancient  and 
modern  history  was  singularly  accurate  and  profound.  At 
the  same  time  he  cultivated  his  literary  taste  by  intimate 
association  with  men  of  letters.  His  physical  constitution 
became  robust  and  enabled  him  to  sustain  great  labor.  His 
mental  faculties  were  acute  and  well-trained,  his  industry 
untiring,  his  memory  capacious.  When  we  add  to  these 
qualifications  a  marvellous  talent  for  oratory  and  a  voice 
of  silvery  clearness,  we  have  described  the  best  qualified  man 
who  ever  undertook  the  profession  of  law. 

Eminence  at  the  bar  was  assured.  He  rapidly  achieved 
the  highest  professional  and  pecuniary  success.  He  passed 
from  the  office  of  Solicitor  General  to  that  of  Attorney  Gen- 
eral, and  became  leader  of  his  party  in  the  House  of  Com- 
mons. He  chose  as  his  reward  in  1756  the  post  of  Lord 
Chief  Justice,  and  held  the  place  until  his  retirement  in 
1788.  His  career  upon  the  bench  is  common  knowledge. 
The  law  of  shipping,  of  commerce,  and  of  insurance  was 
molded  by  him.  The  common-law  action  of  assumpsit  was 
expanded  until  it  embraced  a  recovery  upon  almost  every  sort 
of  pecuniary  obligation.  The  law  of  evidence  he  amplified 
and  illustrated,  leaning  strongly  to  the  view  that  objections 
to  testimony  went  rather  to  the  credibility  than  to  the  com- 
petency of  witnesses.  By  one  decision  he  created  the  whole 
law  of  res  gestae  in  evidence.  His  broad  cultivation  gave  him 
a  singularly  free  and  open  mind.  He  could  not  endure  the 
laws  against  dissenters  or  Roman  Catholics.  He  would  not 


718  V.     BENCH    AND    BAR 

permit  a  priest  to  be  convicted  of  celebrating  the  mass.  In 
the  "  no  popery  riots  "  his  mansion  was  burned  by  a  Prot- 
estant mob.  Yet  Lord  George  Gordon,  who  was  tried  for 
high  treason  in  assembling  the  mob,  voluntarily  chose  to 
be  tried  before  Lord  Mansfield.  His  calm,  colorless  charge 
to  the  jury,  no  less  than  Erskine's  defense,  caused  the  pris- 
oner's acquittal. 

As  a  trial  judge,  his  demeanor  was  blameless.  His  keen- 
ness of  mind,  his  great  experience,  his  firm  but  courteous 
manner,  his  great  patience,  his  impartial  treatment  of  all 
lawyers,  his  want  of  passion  and  enthusiasm,  his  power  of 
dispatching  business,  his  absolute  freedom  from  all  influence, 
made  him  an  ideal  judge.  His  decisions,  with  their  fine  lit- 
erary finish,  combining  the  polish  of  the  scholar  with  the 
learning  of  a  profound  lawyer,  make  the  reports  of  Burrow 
and  Douglas  the  great  repository  of  leading  cases.  In  the 
thirty-three  years  he  served  on  the  bench,  no  bill  of  excep- 
tions was  ever  tendered  to  one  of  his  rulings ;  counsel  being 
perfectly  satisfied  that  when  the  motion  for  a  new  trial  came 
before  the  full  bench,  the  evidence  would  be  fairly  stated. 
Another  singular  fact  is  that  he  had  but  two  judgments 
reversed,  either  in  the  Exchequer  Chamber  or  in  the  House 
of  Lords.  Most  rarely,  too,  did  he  allow  a  reargument  of 
a  case,  and  generally  his  decisions  were  made  upon  the  con- 
clusion of  the  arguments. 

Lord  Mansfield  wp,s  singularly  free  from  one  fault  that 
has  characterized  some  of  the  greatest  judges.  He  showed 
neither  favoritism  nor  envy  toward  any  of  the  leaders  of  the 
bar.  Sir  Matthew  Hale  had  Jeffreys  for  his  favorite,  while 
he  hated  such  men  as  Scroggs  and  Wright.  Jeffreys,  while 
he  had  no  favorite,  displayed  violent  antipathies.  Lord 
Macclesfield  took  under  his  patronage  Philip  Yorke,  after- 
wards Lord  Hardwicke,  and  made  his  fortune  at  the  chan- 
cery bar.  Lord  Kenyon  had  his  fortune  made  by  Thurlow, 
for  whom  he  acted  as  "  devil,"  and  by  Dunning,  many  of 
whose  opinions  he  signed  in  Dunning's  name.  Kenyon  while 
Lord  Chief  Justice  was  completely  under  the  sway  of  Er- 
skine,  who  induced  him  to  charge  the  jury  in  one  case  that 
the  question  of  libel  or  no  libel  was  for  the  jury.  Kenyon 


19.     ZANE:    THE    FIVE    AGES  719 

hated  Law  (afterwards  Lord  Ellenborough),  and  did  what- 
ever he  could  to  oppose  and  humiliate  that  most  accomplished 
advocate.  Law  retorted  by  sneering  at  Kenyon's  bad  Latin, 
his  cheap  clothes,  his  parsimonious  habits  and  general  lack 
of  gentlemanly  accomplishments.  Law  delighted  in  address- 
ing Latin  quotations  to  Kenyon  on  the  bench,  and  the 
judge,  not  understanding  the  Latin,  was  always  in  a  quan- 
dary, whether  to  be  gratified  at  the  tribute  to  his  learning 
or  to  resent  the  quotation  as  ridiculing  some  of  his  defects. 
Ellenborough  while  Lord  Chief  Justice  reserved  his  most 
caustic  utterances  for  Campbell;  but  Campbell  revenged 
himself  by  writing  a  life  of  the  judge.  Lord  Eldon  had  no 
favorite,  but  his  kindest  demeanor  was  shown,  singularly 
enough,  toward  Romilly.  Lord  Tenterden  made  Scarlett 
an  especial  recipient  of  his  favors,  and  lost  no  opportunity 
to  put  down  Copley  (afterwards  Lord  Lyndhurst).  Lynd- 
hurst  on  the  bench  was  without  any  partiality  or  enmity 
among  the  lawyers.  Brougham,  himself  never  any  judge's 
favorite,  hated  Sugden,  afterwards  Lord  St.  Leonards,  and 
missed  no  opportunity  to  sneer  at  his  prosiness. 

Had  there  been  a  succession  of  judges  like  Mansfield, 
the  law  would  not  have  needed  much  statutory  reforming. 
But  Mansfield  was  succeeded  by  Kenyon,  a  very  narrow- 
minded  lawyer,  while  in  the  chancery  court  Lord  Eldon  was 
soon  to  rule  supreme.  Both  of  them  were  accustomed  to 
talk  slightingly  of  the  "  late  loose  notions  "  that  had  pre- 
vailed in  Westminster  Hall.  Not  the  least  debt  the  profes- 
sion owes  to  Mansfield  is  his  persuasion  of  Blackstone  to 
deliver  his  lectures  at  Oxford.  Afterwards  Mansfield  se- 
cured Blackstone  a  place  in  the  Common  Pleas.  Yet  even 
Blackstone  was  the  chief  factor  in  the  Exchequer  Chamber 
in  reversing  Mansfield's  ruling,  where  he  laid  his  reforming 
hand  upon  the  ark  of  the  covenant  of  the  real-estate  law- 
yers, and  attempted  to  make  the  rule  in  Shelley's  case  yield 
to  the  clearly  expressed  intent  of  the  testator. 

It  was  after  Mansfield's  retirement  that  the  echoes  of  the 
French  Revolution  caused  those  State  prosecutions  which 
furnished  the  opportunity  to  Erskine  to  demonstrate  his 
greatness  as  a  forensic  orator.  It  is  a  singular  fact  that 


720  V.    BENCH   AND   BAR 

the  greatest  English  judge  and  the  greatest  English  advo- 
cate were  both  Scotchmen  of  high  descent.  Erskine  was  a 
member  of  the  house  of  the  earls  of  Mar,  the  oldest  title 
in  Europe  which  has  survived  to  our  times.  But  he  had  not 
the  fine  training  of  Mansfield.  The  poverty  of  his  father, 
the  Earl  of  Buchan,  caused  Erskine  at  an  early  age  to  enter 
the  army,  and  it  was  not  until  he  was  twenty-seven  that  he 
turned  to  the  law.  Again  the  profession  has  Mansfield  to 
thank  for  his  advice  to  the  young  subaltern.  The  uninter- 
rupted career  of  Erskine  at  the  bar  justified  Mansfield's 
judgment.  Perhaps  the  world  may  see  again  as  perfect  a 
forensic  orator,  but  doubtless  up  to  our  time  the  Roman 
Cicero  is  the  only  advocate  who  can  be  found  to  rank  with 
Erskine. 

While  Mansfield  was  on  the  bench,  Jeremy  Bentham  had 
been  writing  his  epoch-making  works.  He  was  the  son  and 
grandson  of  attorneys,  members  of  the  inferior  grade  of  the 
profession.  He  was  educated  at  Westminster  School  and 
at  Queen's  College,  Oxford.  At  twenty-five  he  entered  Lin- 
coln's Inn.  He  attended  the  court  of  King's  Bench  and  lis- 
tened, as-  he  tells  us,  with  rapture  to  the  judgments  of  Lord 
Mansfield.  He  heard  Blackstone's  lectures  at  Oxford,  but 
he  says  that  he  immediately  detected  the  fallacies  under- 
lying those  smooth  periods.  Fortunately,  he  was  the  pos- 
sessor of  an  ample  fortune  which  gave  him  leisure  for  study. 
Becoming  disgusted  with  the  profession,  and  willing  to  dis- 
appoint the  wishes  of  his  father,  who  had  hoped  that  his 
son's  great  talents  would  at  last  place  him  in  the  marble 
chair,  Bentham  voluntarily  relinquished  all  effort  to  take 
an  active  part  in  life,  either  as  a  lawyer  or  legislator,  and 
devoted  himself  to  the  study  of  the  subjects  upon  which 
legislation  ought  to  act  and  the  principles  upon  which  it 
ought  to  proceed.  His  ample  means  to  employ  secretaries 
saved  him  from  a  life  of  drudgery.  He  gathered  around 
him  a  small  but  brilliant  company;  prominent  among  his 
circle  were  Romilly,  Mackintosh,  and  Brougham,  the  ex- 
ponents of  his  views  of  legal  reform. 

Bentham's  legal  reforms  were  but  a  small  part  of  his 
activity.  He  was  a  philosopher,  who  claimed  by  his  one 


19.     ZANE:    THE    FIVE    AGES  721 

principle  to  have  solved  the  puzzle  of  human  life  and  des- 
tiny. His  utilitarian  formula  of  the  greatest  happiness  of 
the  greatest  number  is  but  a  restatement  of  the  tenet  of  a 
Grecian  school  of  philosophy.  The  lawyers  for  centuries 
had  been  applying  the  principle  under  the  form  of  their 
maxim,  "  solus  popidi  est  suprema  lex."  It  was  this  dogma 
that  gave  a  practical  aspect  to  Bentham's  views  of  law 
reform.  He  is  one  of  the  few  reformers  of  law  who  was 
widely  read  and  instructed  in  the  matter  he  was  trying  to 
reform.  He  had  the  capacity  of  the  jurist  to  grasp  legal 
principles,  but  with  keen  logic  and  inventive  mind,  he  threw 
a  flood  of  new  light  upon  old  stock  notions  in  the  law.  Hav- 
ing mastered  the  practical  doctrines  of  the  law  he  took  (in 
Brougham's  phrase)  "  the  mighty  step  of  trying  the  whole 
provisions  of  our  jurisprudence  by  the  test  of  expediency." 
He  tested  its  rules  and  arrangements  by  the  circumstances 
of  society,  the  wants  of  men,  and  above  all  by  the  promo- 
tion of  human  happiness. 

Long  years  of  study  are  contained  in  Bentham's  writings 
on  legislation.  In  1776,  at  the  age  of  thirty-two,  he  pub- 
lished his  Fragment  on  Government,  of  which  Lord  Lough- 
borough  said  that  it  formulated  a  dangerous  principle.  His 
Principles  of  Morals  and  Legislation  came  out  in  1789. 
His  Art  of  Packing  was  published  in  1821.  His  Rationale 
of  Judicial  Evidence  saw  the  light  in  1827,  when  he  was 
seventy-nine.  These  works  give  but  a  small  part  of  his 
labors  on  the  law;  bold  and  hardy  indeed  is  the  man  who 
will  undertake  to  read  all  that  Bentham  wrote  upon  the 
deficiencies  of  our  legal  system. 

He  had  little  respect  for  the  law  as  he  found  it.  The 
separate  jurisdictions  of  law  and  equity  were  to  him  an 
absurdity.  A  bill  in  chancery  he  characterized  as  a  volume 
of  notorious  lies.  The  technical  common  law  procedure  and 
the  occult  science  of  special  pleading  were  relics  of  barbar- 
ism. He  assaulted  the  rules  excluding  the  testimony  of.  par- 
ties and  interested  witnesses.  His  zeal  to  moderate  the  crim- 
inal law  was  a  matter  of  humanity.  The  jury  system  did 
not  meet  his  entire  approval.  He  advocated  local  courts 
presided  over  by  a  single  judge  trained  to  judicial  work, 


722  V.     BENCH   AND   BAR 

without  a  jury,  except  when  specially  demanded,  and  then 
only  as  a  security  against  class  feeling,  governmental  op- 
pression or  corruption.  At  first  he  was  ignored  by  the  pro- 
fession as  a  foolish  and  visionary  man,  who  put  his  ideas 
in  very  bad  English.  He  did  manage  to  secure  an  act 
against  cruelty  to  animals,  and  this  was  all.  Yet  when  he 
died  in  1832  he  was  revered  as  the  founder  of  modern  legis- 
lation. 

His  disciples  devoted  themselves  to  his  practical  reforms 
on  the  side  of  the  most  important  part  of  the  law,  —  the 
means  which  it  provides  for  the  enforcement  of  rights  and 
the  redress  of  wrongs.1  Easily  accessible  courts,  a  cheapen- 
ing of  legal  remedies,  and  the  prevention  of  delays,  were 
proposed  as  matters  of  the  first  moment.  Judicial  evidence 
was  to  be  regulated,  so  that  it  would  be  certain  that  all  the 
testimony  could  be  heard.  Pleadings  were  to  be  curtailed 
and  simplified,  fictions  were  to  be  abolished,  sham  pleadings 
made  impossible,  and  all  distinctions  in  forms  of  actions  and 
in  the  jurisdiction  of  courts  were  to  be  swept  away.  For 
"  glittering  generalities  "  Bentham's  mind  had  no  tolerance. 
He  dissected  with  more  or  less  severity  the  fallacies  of  our 
Declaration  of  Independence.  He  refuted  the  so-called  self- 
evident  truths  that  all  men  are  created  equal,  that  they  are 
endowed  with  certain  inalienable  rights,  among  them  the 
right  to  life,  liberty,  and  the  pursuit  of  happiness. 

The  struggle  for  reform  had  been  initiated  by  Sir  Samuel 
Romilly,  in  his  effort  to  mitigate  the  penal  code.  Year  after 

1  One  change  in  the  law,  which  once  seemed  a  very  important  matter 
in  England,  had  been  made  hefore  the  reformers  set  to  work.  The 
judges  of  England  had  uniformly  held  that  in  a  prosecution  for  libel  the 
jury  passed  upon  the  facts,  the  court  upon  the  law.  The  construction 
of  the  written  document,  whether  it  was  libellous  or  not,  was  according 
to  well-settled  principles  a  question  for  the  court.  The  matters  of  fact, 
as  to  whether  the  defendant  had  published  the  libel  and  whether  its 
references  were  to  the  persons  and  things  stated  in  the  indictment  or 
information,  were  for  the  jury.  But  as  long  as  the  jury  rendered  a 
general  verdict  of  not  guilty,  there  was  presented  a  chance  to  the  jury  to 
find  a  verdict  of  not  guilty,  upon  the  ground  that,  although  the  publi- 
cation was  found  and  the  innuendoes  proven,  the  document  was  in  fnct 
no  libel.  The  judges  had  tried  to  escape  this  dilemma  by  putting  to  the 
jury  the  question  of  publication  and  of  the  truth  of  the  innuendoes,  but 
Fox's  Libel  Act  provided,  in  effect,  that  the  jury  should  pass  upon  both 
fact  and  law. 


19.     ZANE:    THE    FIVE    AGES  723 

year  Romilly  passed  his  bill  through  the  Commons ;  but  it 
always  failed  in  the  Lords  before  the  opposition  of  Eldon 
and  Ellenborough.  Eventually  he  must  have  succeeded,  but 
his  wife's  death  in  1818  plunged  him  into  such  profound 
grief  that  in'  a  moment  of  madness  he  took  his  own  life. 
His  practice  at  the  bar  was  solely  in  the  chancery  court. 
The  favor  of  Lord  Eldon  made  him  the  leading  chancery 
barrister.  We  have  preserved  to  us  the  substance  of  his 
argument  in  a  great  leading  case.1  Lord  Cottenham,  after- 
wards, speaking  from  the  bench 2  of  Romilly's  celebrated 
reply,  said :  "  From  the  hearing  of  it,  I  received  so  much 
pleasure,  that  the  recollection  of  it  has  not  been  diminished 
by  the  lapse  of  more  than  thirty  years."  Romilly's  winning 
personality,  his  charming  manners,  his  uprightness  and  love 
of  humanity,  his  really  marvellous  eloquence,  make  him  one 
of  the  most  interesting  figures  at  the  English  bar.  His  son 
Lord  Romilly,  the  well-known  Master  of  the  Rolls,  has  made 
the  name  a  noted  one  in  the  judicial  records. 

A  greater  than  Romilly  now  took  up  the  burden  of  re- 
form. Henry  Brougham  was,  perhaps,  at  certain  times, 
the  most  effective  orator  of  the  first  half  of  the  nineteenth 
century ;  but  he  was  never  a  close  and  accurate  lawyer.  He 
had  nothing  like  the  success  at  the  bar  of  Law,  the  defender 
of  Warren  Hastings,  or  of  Erskine.  He  had  neither  steadi- 
ness nor  application  in  ordinary  practice.  But  he  was  the 
foremost  figure  in  the  most  celebrated  trial  of  the  century. 
When  George  IV.  attempted  to  rid  himself  of  his  wife,  Caro- 
line of  Brunswick,  by  a  bill  of  pains  and  penalties,  she  was 
defended  by  Brougham,  Denman,  and  Wilde,  while  John 
Singleton  Copley  assisted  in  the  prosecution.  All  of  them 
attained  the  highest  honors ;  three  of  them  were  chancellors 
and  one  a  lord  chief  justice.  Both  Brougham  and  Denman 
on  that  trial  made  splendid  speeches,  but  the  finest  argu- 
ment from  a  lawyer's  standpoint  was  Copley's. 

Romilly,  Brougham,  and  Mackintosh  found  the  greatest 
obstacle  to  their  work  for  law  reform  to  be  the  presence 
of  Lord  Eldon  in  the  House  of  Lords.  Eldon  himself 

1  Hugenin  v  Baselee,  14  Ves.  273. 
'Dent  v.  Russell,  4  Myl.  &  Cr.  277. 


724  V.    BENCH   AND   BAR 

had  smarted  under  the  attempts  to  reform  his  own  court 
of  chancery.  His  long  chancellorship  had  witnessed  a  great 
increase  in  the  business  of  the  chancery  court.  His  excessive 
deliberation  clogged  the  calendar  with  unheard  cases.  Many 
suitors  in  despair  abandoned  their  cases.  Even' when  a  cause 
had  been  heard,  the  decision  was  long  in  coming,  while  the 
vast  expense  of  chancery  proceedings  was  frightfully  op- 
pressive. Regularly,  at  the  opening  of  each  Parliament, 
Michael  Angelo  Taylor  made  his  motion  for  an  investigation 
of  Eldon's  court..  After  Taylor  gave  up  the  fight,  a  bar- 
rister named  John  Williams  took  up  the  annual  motion.  In 
the  debates  the  chancery  court  was  roughly  handled,  al- 
though Eldon,  as  a  judge,  received  every  man's  praise. 
Lord  Eldon  was  much  annoyed  at  the  complaints,  but  he 
resolutely  opposed  all  change  in  his  own  court  as  well  as 
in  the  common  law  courts.  It  perhaps  is  to  his  credit  that 
he  actually  concurred  in  abolishing  trial  by  battle;  but  he 
contested  the  statute  taking  away  the  death  penalty  for 
larceny.  He  opposed  all  changes  in  the  law  of  real  prop- 
erty. He  lamented  the  bill  abolishing  fines  and  common 
recoveries,  and  even  Sugden,  the  great  authority  on  real- 
estate  law,  pronounced  the  new  plan  impossible.  The  bill 
abolishing  sinecure  offices  in  the  chancery  and  simplifying 
certain  chancery  proceedings  caused  Eldon  such  anguish 
that  he  wrote  that  he  would  not  go  down  to  Parliament 
again.  Railroads  he  denounced  as  dangerous  innovations. 
The  abolishment  of  rotten  boroughs  was  to  him  a  shocking 
invasion  of  vested  rights.  He  exclaimed  over  the  Reform 
bill :  " '  Save  my  country,  Heaven,'  is  my  morning  and 
evening  prayer,  but  that  it  can  be  saved,  cannot  be  hoped." 
The  proposal  to  abolish  the  difference  between  wills  of  real 
and  personal  property  excited  Eldon's  greatest  alarm.  He 
frustrated  the  efforts  of  Romilly  to  mitigate  the  penal 
code.  He  resented  reforms  in  the  common  law  procedure 
as  encroachments  upon  equity.  In  the  general  domain  of 
politics  Eldon  was  the  same  sort  of  obstructionist.  He 
bitterly  opposed  the  repeal  of  the  Test  Act,  and  when  it 
was  proposed  to  remove  the  disabilities  of  Roman  Catholics, 
he  declared  in  the  House  of  Lords :  "  If  I  had  a  voice  that 


19.     ZANE:    THE    FIVE    AGES  725 

would  sound  to  the  remotest  corner  of  the  Empire,  I  would 
re-echo  the  principle  that,  if  ever  a  Roman  Catholic  is 
permitted  to  form  part  of  the  legislature  of  this  country, 
or  to  hold  any  of  the  great  executive  offices  of  the  govern- 
ment, from  that  moment  the  sun  of  Great  Britain  is  set 
forever."  Such  was  the  attitude  toward  reform  of  the  man 
who,  if  we  look  alone  at  the  substance  of  his  decisions,  must 
be  called  the  greatest  English  chancellor. 

After  Brougham  had  quarreled  with  his  party,  the 
burden  of  passing  the  bills  for  the  promised  legal  reforms 
fell  upon  Sir  John  Campbell.  The  ablest  opponent  of  many 
of  these  measures  was  the  Conservative  leader,  Lord  Lynd- 
hurst.  This  great  man  was  born  in  Boston  just  before  the 
Revolution.  His  father  was  the  painter  Copley,  his  mother 
a  daughter  of  that  unfortunate  Boston  merchant  whose 
cargo  of  tea  was  dumped  into  Boston  harbor.1  Lyndhurst 
was  taken  to  England,  educated  at  Cambridge,  and  called 
to  the  bar  from  Lincoln's  Inn ;  he  slowly  worked  his  way 
to  the  head  of  the  profession.  On  the  Queen's  trial  he 
summed  up  the  evidence  in  a  speech  which  as  a  piece  of 
legal  reasoning  far  excels  Brougham's  or  Denman's.  As  a 
judge  he  demonstrated  that  he  was  gifted  with  the  finest 
judicial  intellect  that  England  can  show  in  the  nineteenth 
century.  We  are  interested  here  solely  in  his  attitude 
toward  reforms  in  the  law. 

When  Attorney  General  he  had  proposed  a  bill  for  re- 
forming the  chancery  court,  which  as  all  parties  were  com- 
pelled to  admit,  stood  in  need  of  reform.  In  1826  he  made 
a  great  speech  against  allowing  counsel  for  the  accused  in 
trials  of  felony  to  address  the  jury;  but  a  few  years  later 
he  concurred  in  such  a  change  in  the  law.  It  should  be 
remembered  that  Justice  Park  threatened  to  resign  if  a  bill 
allowing  counsel  to  the  accused 'were  passed,  and  that  twelve 
of  the  fifteen  judges  strongly  condemned  the  enactment. 
Most  of  the  judges  opposed  the  provision  allowing  defend- 
ants in  criminal  cases  to  produce  witnesses. 

In  the  debates  on  the  Reform  Bill  there  appears  a  practice 
in  one  of  the  rotten  boroughs  which  throws  a  curious  light 
1  This  act  of  larceny  is  usually  described  as  an  outburst  of  patriotism. 


726  F.     BENCH   AND   BAR 

on  prevalent  political  morality.  Lyndhurst,  amidst  the 
laughter  of  his  hearers,  read  that  part  of  the  evidence 
which  showed  that  Campbell,  the  eminent  reformer,  had 
paid  for  his  election  by  the  Stafford  constituency,  to  five 
hundred  and  thirty-one  out  of  five  hundred  and  fifty-six 
electors,  the  sum  of  three  pounds  ten  shillings  for-  a  single 
vote,  and  six  pounds  for  a  plumper.  Campbell's  defence 
was  that,  "  this  could  not  properly  be  called  bribery,  for  he 
had  simply  complied  with  the  well-known  custom  of  paying 
*  head  money,'  and  the  voter  received  the  same  sum  on 
whichever  side  he  voted."  During  another  debate  Lynd- 
hurst condemned  the  practice  of  chancery  counsel  in  going 
from  one  court  to  another,  and  being  actually  engaged  in 
carrying  on  causes  of  importance  in  two  courts  at  the  same 
time.  But  this  sort  of  evil  was  no  less  marked  in  the 
common  law  courts. 

Lyndhurst  opposed  the  original  county  court  bill,  which 
after  many  changes  and  improvements  has  proved  of  such 
value  in  England;  yet  Lyndhurst  appointed  both  the  com- 
mission to  enquire  into  the  law  of  real  property  and  another 
commission  to  investigate  common  law  procedure.  In  1852, 
when  the  Common  Law  Procedure  Act  was  under  discussion, 
both  Lyndhurst  and  Brougham  opposed  the  bill  because  it 
did  not  sweep  away  all  written  allegations.  As  a  general 
rule,  Lyndhurst  was  a  friend  to  reasonable  changes  in  the 
law,  and  most  of  the  later  reforms  had  his  able  advocacy. 

Gradually  the  chancery  court  was  reformed.  Its  fees 
and  expenses  were  first  reduced.  In  accordance  with  the 
report  of  a  Chancery  Commission  composed  of  such  lawyers 
as  Lord  Romilly,  Turner,  James,  Bethell,  and  Page-Wood, 
the  masters  in  chancery  were  abolished.  Later,  issues  of 
law  were  done  away  with,  and  the  evidence  was  required  to 
be  taken  orally  before  examiners.  Finally,  examiners  were 
abandoned  for  a  system  of  evidence  given  in  the  form  of 
affidavit  for  certain  proceedings,  or  given  orally  before  the 
judge. 

As  early  as  1843  the  law  of  evidence  was  changed  by 
Lord  Denman's  act  so  as  to  permit  interested  witnesses  to 
give  testimony.  In  1851  a  party,  as  well  as  the  husband 


19.    ZANE:   THE   FIVE   AGES  727 

or  wife  of  a  party,  became  a  competent  witness  in  a  civil 
case.  All  the  common  law  judges  and  the  Chancellor,  Lord 
Truro  (better  known  as  the  barrister,  Wilde,  who  appeared 
with  Brougham  and  Denman  for  Queen  Caroline),  opposed 
the  bill.  Even  Lord  Campbell,  who  gave  the  act  its  first 
trial,  said :  "  It  has  made  a  very  inauspicious  start ;  one 
party,  if  not  both  parties,  having  hitherto  been  forsworn  in 
every  cause."  Finally,  in  1898,  the  defendant  in  a  criminal 
case  was  made  a  competent  witness  on  his  trial. 

The  original  changes  in  the  rules  of  pleading  at  common 
law  were  made  under  rules  formulated  by  the  judges.  In 
1860  all  common  law  courts  were  given  equity  powers  as  to 
all  questions  at  issue  before  them.  This  bill  was  violently 
opposed  by  Lord  St.  Leonards,  but  was  supported  by  all  the 
common  law  judges.  Power  was  given  to  all  the  common  law 
courts  to  examine  witnesses  de  bene  esse,  to  order  the  discov- 
ery of  documents,  and  to  compel  an  examination  of  a  party 
by  his  opponent.  In  this  way  the  whole  distinctive  auxiliary 
jurisdiction  of  equity  was  swept  away. 

Finally,  the  Judicature  Commission  made  its  report,  and 
the  two  great  lawyers,  Lord  Selborne  for  the  Liberals  and 
Lord  Cairns  for  the  Conservatives,  proposed  and  carried 
the  Judicature  Act  of  1873.  All  the  historical  courts  of 
England  were  combined  in  a  single  High  Court  of  Justice. 
It  was  given  a  Chancery  Division,  a  King's  Bench  Divi- 
sion, a  Probate,  Divorce  and  Admiralty  Division.1  Above 
the  High  Court  of  Justice  was  constituted  a  Court  of 
Appeal,  and  from  the  Court  of  Appeal  a  further  appeal 
lay  to  the  House  of  Lords.  All  branches  of  the  High 
Court  of  Justice  were  given  power  to  administer  both  legal 
and  equitable  relief,  and  wherever  there  was  any  conflict 
between  the  rules  of  equity  and  the  rules  of  law,  equity  was 
to  prevail.  Power  was  given  to  transfer  a  cause  from  one 
division  to  another,  so  that  Lord  Cairns  could  say : a  "  The 
court  is  not  now  a  court  of  law  or  a  court  of  equity,  but  a 
court  of  complete  jurisdiction."  The  result  of  the  Act,  it 

*The  two  additional  Divisions  of  the  original  Act,  Common  Pleas 
and  Exchequer,  were  shortly  afterwards  abolished. 
»  7  App.  Cas.  237. 


728  P.     BENCH    AND    BAR 

was  asserted,  "  has  been  in  the  highest  degree  satisfactory, 
and  has  resulted  in  flexibility,  simplicity,  uniformity,  and 
economy  of  judicial  time."  The  final  result  of  the  legislation 
is  said  by  Lord  Bowen  to  be,  "  that  it  is  not  possible  in  the 
year  1887  for  an  honest  litigant  in  her  Majesty's  Supreme 
Court  to  be  defeated  by  any  mere  technicality,  any  slip,  any 
mistaken  step,  in  his  litigation."  It  is  curious  to  note  that 
the  learned  Foss  mournfully  recorded  the  Judicature  Act. 
He  deplored  it  as  a  restoration  of  the  old  Norman  Aula 
Regis. 

Thus  we  see  that  practically  the  whole  of  the  Benthamite 
series  of  reforms  has  been  carried  out.  In  the  course  of 
a  century,  step  by  step,  the  whole  face  of  the  formal  portion 
of  the  English  law  has  been  changed.  And  yet,  as  one  looks 
back  on  the  history  of  the  law,  he  is  compelled  to  admit  that 
at  any  given  time  the  system  of  law  was  fully  as  good  as 
was  merited  by  the  people  whom  it  governed.  The  highest 
and  best  index  to  the  steady  progression  of  the  race  is  the 
continued  improvement  in  jurisprudence.  To  the  formalism 
of  the  old  law  we  owe  it  that  our  substantive  law  is  what 
it  is.  The  growing  rigidity  of  the  common  law  procedure 
produced  that  equity  system  which  borrowed  so  heavily  from 
the  Roman  jurisprudence.  To  the  differing  jurisdictions  of 
law  and  equity  we  are  indebted  for  a  progress  which  was 
achieved  by  the  careful  weighing  of  the  one  system  against 
the  other.  Even  the  rules  of  evidence  which  excluded  the 
testimony  of  interested  witnesses  and  of  parties  to  the  litiga- 
tion have  borne  their  full  fruit  in  assisting  in  the  growing 
veracity  of  our  race.  The  cruelties  of  the  criminal  law  did 
their  work  in  making  our  criminal  law  the  most  mercifully 
administered  system  of  public  punishment. 

It  is  more  than  a  coincidence  that  the  reorganized  pro- 
cedure should  begin  its  career  in  a  new  home.  In  1882  West- 
minster Hall  was  finally  abandoned  for  the  new  Courts  of 
Justice.  The  lawyer  who  loves  the  traditions  of  his  profes- 
sion cannot  refrain  from  regret  when  he  parts  with  West- 
minster Hall,  or  when  he  sees  the  extinction  of  that  ancient 
Order  of  the  Coif  which  had  endured  for  seven  hundred 
years.  Appropriately  enough  the  new  Courts  stand  in  the 


19.     ZANE:    THE   FIVE    AGES  729 

midst  of  the  ancient  legal  university.  To  the  north  rise 
the  towers  of  Lincoln's  Inn,  and  across  the  Strand  to  the 
south  stand  the  Middle  and  Inner  Temple.  Surrounded  by 
so  many  legal  memories,  dense,  indeed,  must  be  the  lawyer 
who  is  not  moved  to  be  worthy  of  that  science  of  administer- 
ing justice  which  has  written  the  most  glorious  pages  of 
English  history. 


20.     A     CENTURY     OF     ENGLISH     JUDICATURE, 

1800  - 1900  l 

BY  VAN  VECHTEN  VEEDER  2 

7.    From  the  Beginning  of  the  Century  to  the 
Common  Law  Procedure  Act  of  1852 

FAR  into  the  nineteenth  century  the  administration  of 
English  law  was  characterized  by  methods  and  aims 
which  belonged  to  the  past.  The  traditional  division  be- 
tween law  and  equity,  in  courts  having  no  common  historical 
origin  and  administering  justice  on  principles  essentially 
unlike,  went  far  beyond  the  requirements  of  a  rational 
division  of  labor.  Law  and  equity  applied  divers  rules 
to  the  same  subject  matters,  and  afforded  different  remedies 
for  similar  wrongs.  In  consequence  of  the  refusal  of  the 
common  law  courts  to  recognize  claims  and  defences  which 
equity  allowed,  judgments  obtained  at  common  law  were 
often  nullified  by  injunctions  obtained  in  equity.  Theoret- 
ically the  two  jurisdictions  were  well  defined,  but  in  practice 
there  was  often  uncertainty  as  to  the  proper  forum.  Suits 
in  chancery  were  constantly  dismissed  because  it  appeared 
at  the  hearing  that  there  was  a  remedy  at  law,  while  plain- 
tiffs were  non-suited  at  law  because  they  should  have  sued 
in  equity.  Even  when  he  found  himself  in  the  right  forum, 
the  perplexed  litigant  was  driven  backward  and  forward 
from  law  to  equity  in  order  to  obtain  complete  redress. 

1  This  essay  was  first  published  as  a  series  of  articles  in  the  Green 
Bag,  volume  XIII.  (1901),  pp.  23  et  seq,  and  volume  XIV.  (1902), 
27  et  seq.;  it  has  been  revised  by  the  author  for  this  collection. 

*  Member  of  the  Bar  of  New  York  City ;  M.  A.  Union  College. 

Other  Publications:  "Lord  Bowen,"  "Lord  Westbury,"  "Sir  Alex- 
ander Cockburn,"  Harvard  Law  Review  (1897-1900);  Legal  Master- 
pieces (1903);  and  two  other  essays  reprinted  in  the  present  collec- 
tion. 

730 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  731 

Whenever  it  was  sought  to  prevent  a  threatened  injury, 
to  preserve  the  subject  matter  of  litigation  intact,  or  to 
discover  documents,  the  common  law  was  compelled  to  resort 
to  equity  to  support  even  a  legal  claim.  In  consequence  of 
its  recognized  incapacity  for  the  determination  of  questions 
of  fact,  the  court  of  chancery,  in  turn,  constantly  availed 
itself  for  such  purposes  of  the  assistance  of  the  common  law 
courts. 

The  three  ancient  superior  courts  of  common  law  flour- 
ished side  by  side,  although  by  various  devices  they  had 
gradually  acquired  concurrent  jurisdiction  over  personal 
actions.  The  Court  of  King's  Bench  still  maintained  juris- 
diction of  civil  and  criminal  cases  alike,  and  had  supreme 
authority  over  all  inferior  tribunals  with  its  weapons  of 
mandamus  and  prohibition.  .The  Court  of  Common. Pleas 
retained  jurisdiction  over  the  remaining  forms  of  real  ac- 
tion, and  the  Court  of  Exchequer  still  retained  in  revenue, 
equity  and  a  few  other  matters  a  separate  jurisdiction. 
Notwithstanding  the  pressure  of  a  rapidly  increasing  vol- 
ume of  litigation,  these  courts,  in  accordance  with  an  anti- 
quated system,  sat  during  only  four  short  terms  of  three 
weeks  each.  Their  procedure  was  based  upon  the  system  of 
special  pleading,  which,  however  admirable  as  a  species  of 
dialectic,  inevitably  promoted  excessive  technicality  and  ab- 
sorption in  mere  forms.  A  system  which  based  its  claims 
to  consideration  upon  its  precision,  it  was  nevertheless  honey- 
combed with  fictions.  Just  claims  were  liable  to  be  defeated 
by  trivial  errors  in  pleading,  by  infinitesimal  variances 
between  pleading  and  proof,  and  by  the  absence  or  presence 
of  merely  nominal  parties.  The  arbitrary  classification  of 
actions  was  another  pitfall  into  which  the  most  wary  some- 
times fell.  If  a  surprise  occurred  at  nisi  prius,  the  court 
was  unable  to  adjourn  the  proceedings  a  single  day.  And, 
as  a  crowning  paradox,  a  fundamental  rule  of  evidence  ex- 
cluded absolutely  the  testimony  of  all  witnesses  who  had 
the  remotest  interest  in  the  result.  "  The  rules  of  evidence 
were  so  carefully  framed  to  exclude  falsehood  that  very 
often  truth  itself  was  unable  to  force  its  way  through  the 
barriers  thus  created." 


732  V.     BENCH   AND   BAR 

The  lofty  standard  of  right  which  chancery  held  out  to 
suitors  was  apt  to  be  an  ignis  fatuus  luring  them  on  to 
further  expense  and  delay.  In  consequence  of  its  applica- 
tion of  a  uniform  procedure  to  contentious  and  adminis- 
trative business  alike,  persons  between  whom  there  was  really 
no  dispute  were  compelled  to  engage  in  useless  contests. 
Equity  pleadings,  like  those  at  common  law,  were  marvelous 
specimens  of  tautology  and  technicality.  Evidence  was 
gathered  by  means  of  written  interrogatories,  and  through- 
out the  whole  contest  the  litigants  groped  after  one  another 
in  the  dark.  No  litigant  entering  into  a  chancery  suit  with 
a  determined  adversary  could  have  any  reasonable  hope  of 
living  to  witness  its  termination.  Everybody  even  remotely 
interested  was  a  necessary  party,  and  whenever  one  of  these 
parties  died  pending  suit,  bills- of  review  or  supplement  bills 
were  necessary  to  restore  the  symmetry  of  the  litigation.1 

(a)   Chancery  Courts 

During  the  first  quarter  of  the  century  Lord  Eldon 
(1801-6;  1807-27)  reigned  supreme  in  chancery.  Time 
has  been  so  busy  with  Eldon's  shortcomings  that  there  is 
danger  of  losing  sight  of  his  eminent  abilities.  He  pos- 
sessed in  a  degree  seldom  surpassed  some  of  the  highest 
qualities  of  judicial  excellence:  quick  apprehension,  reten- 
tive njemory,  vast  technical  learning,  a  judgment  which 
neither  perplexity  nor  sophistry  could  confound,  and  an 
industry  never  enervated  by  luxury  nor  disturbed  by  pas- 
sion. His  understanding  was  capable  of  feats  of  meta- 
physical acumen  and  subtlety  that  would  have  enlisted  the 
admiration  of  the  schoolmen  by  whom  equity  was  originally 
administered;  but  this  was  not  in  his  case  an  advantage. 
Beyond  his  profession  he  was  ill  read,  untraveled  and  without 
knowledge  of  the  world.  Aside  from  the  performance  of 
the  political  duties  attached  to  his  high  office,  he  devoted 

1  See  Lord  Justice  Bowen's  graphic  description  of  the  technicalities, 
confusions  and  obscurities  which  beset  litigation  at  the  beginning  of 
Queen  Victoria's  reign,  in  the  collection  of  essays  published  by  Thos. 
Humphrey  Ward  in  honor  of  the  Queen's  Jubilee.  [Lord  Bowen's 
essay  is  reprinted  as  No.  16  of  this  Collection.  —  EDS.] 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  733 

himself   to  the  law  with   entire  singleness   of  purpose   and 
indefatigable  industry. 

The  vast  arrears  in  chancery  which  accumulated  during 
his  administration  is  the  most  serious  blot  on  his  reputation. 
It  would  be  an  injustice  to  the  memory  of  a  really  noble 
character  to  fix  upon  him  the  sole  responsibility  for  that 
monstrous  denial  of  justice.  The  chancery  system  had  never 
been  distinguished  by  despatch,  and  the  rapid  and  sustained 
increase  in  litigation  during  Eldon's  time  accentuated  the 
delay  which  has  come  to  be  associated  with  his  name.  The 
arrears  in  chancery  were  due,  in  part,  to  the  state  of  the 
law,  to  the  insufficiency  of  the  time  applied  to  judicial  busi- 
ness, and  to  the  want  of  an  adequate  number  of  courts. 
Lord  Eldon  was  a  powerful  political  officer  as  well  as  a 
judge,  and  during  his  time  the  quasi-political  duties  of  his 
office  were  particularly  onerous.  The  investigation  of  the 
Berkeley  and  Roxburghe  peerage  claims  and  the  trial  of 
Queen  Caroline  are  illustrations  of  the  extra-judicial  de- 
mands made  upon  his  time.  Slight  relief  was  eventually 
afforded  by  the  appointment  of  a  deputy  speaker  of  the 
House;  but  the  ultimate  establishment  of  a  vice-chancellor's 
court  was  not'  an  immediate  success,  and  it  was  many  years 
before  the  master  of  the  rolls  was  enabled  to  render  any 
effective  assistance.  Considering  the  vast  political  power  that 
Lord  Eldon  exercised  in  the  cabinet  councils,  it  is,  however, 
a  deep  and  permanent  reproach  upon  his  reputation  that 
he  did  practically  nothing  to  remedy  the  chancery  system. 
And  it  must  be  admitted  that  Lord  Eldon's  judicial  methods 
were  dilatory  in  the  extreme.  No  one  was  ever  better  qual- 
ified by  nature  and  by  training  to  arrive  at  a  speedy  deci- 
sion. Indeed,  during  his  short  term  in  the  Court  of  Common 
Pleas  he  sho.wed  a  capacity  for  prompt  decision  which  con- 
trasts curiously  with  his  marked  indecision  in  chancery. 
His  delay  was  really  due,  not  so  much  to  want  of  readiness 
in  reaching  a  decision,  as  to  dilatoriness  in  formulating 
his  opinion.  The  fact  that  this  delay  was  due  in  large 
measure  to  his  extreme  conscientiousness  does  not  affect  the 
result,  although  it  does  to  some  extent  relieve  his  memory. 


734  V.     BENCH   AND   BAR 

It  may  be  well  to  quote  his  own  justification  as  given  in 
his  diary : 

"  During  my  chancellorship  I  was  much,  very  much, 
blamed  for  not  giving  judgment  at  the  close  of  the  argu- 
ments. I  persevered  in  this,  as  some  thought  from  obstinacy, 
but  in  truth  from  principle,  from  adherence  to  a  rule  of 
conduct,  formed  after  much  consideration,  as  to  what  course 
of  proceeding  was  most  consonant  with  my  duty.  With 
Lord  Bacon,  '  I  confess  I  have  somewhat  of  the  cunctative 
mind,'  and  with  him  I  thought  that  *  whosoever  is  not  wiser 
upon  advice  than  upon  the  sudden,  the  same  man  is  no  wiser 
at  fifty  than  he  was  at  thirty.'  I  confess  that  no  man  had 
more  occasion  than  I  had  to  use  the  expression  which  was 
Lord  Bacon's  father's  ordinary  word,  *  You  must  give  me 
time.'  I  always  thought  it  better  to  allow  myself  to  doubt 
before  I  decided,  than  to  expose  myself  to  the  misery  of 
doubting  whether  I  had  decided  rightly  and  justly.  It  is 
true  that  too  much  delay  before  decision  is  a  great  evil. 
But  in  many  instances  delay  leads  eventually  to  prevent 
delay:  that  is,  the  delay  which  enables  just  decision  to  be 
made  accelerates  the  enjoyment  of  the  fruits  of  the  suit; 
and  I  have  some  reason  to  hope  that  in  a  great  many  cases 
final  decision  would  have  been  much  longer  postponed  if 
doubts  as  to  the  soundness  of  original  judgments  had  led 
to  rehearings  and  appeals,  than  it  was  postponed  when  much 
and  anxious  and  long  consideration  was  taken  to  form  an 
impregnable  original  decree.  The  business  of  the  court  was 
also  so  much  increased  in  some  periods  of  my  chancellor- 
ship that  I  never  could  be  confident  that  counsel  had  fully 
informed  me  of  the  facts  or  of  the  law  of  many  of  the  cases. 
There  may  be  found  not  a  few  instances  in  which  most  sat- 
isfactory judgments  were  pronounced  which  wtere  founded 
upon  facts  or  instruments  with  which  none  of  the  counsel 
who  argued  the  cases  were  acquainted,  though  such  facts 
and  instruments  formed  part  of  the  evidence  in  the  case." 

Accordingly,  he  was  given  to  reviewing  a  case  in  all  con- 
ceivable aspects  long  after  he  had  in  fact  exhausted  the 
actual  issue;  and  the  reports  are  full  of  instances  where 
in  matters  of  difficulty  he  laboriously  examined  the  whole 


80.     VEEDER:  A   CENTURY  OF  JUDICATURE  735 

volume  of  cases  connected  with  the  topic  under  consideration.1 
Hence  his  decrees  and  opinions  are  so  overlaid  with  fine  dis- 
tinctions and  limitations  that  the  ratio  decidendi  is  not 
always  easy  to  find.  At  no  stage  of  his  career  did  he  ever 
display  any  evidence  of  the  perspicuities,  much  less  the 
graces,  of  literary  style.  So  inextricably  parenthetical  and 
over  abundant  in  qualifications  is  all  his  work  that  one  can 
appreciate  the  feelings  of  Horne-Tooke  when  he  declared 
that  he  would  "  rather  plead  guilty  on  a  second  trial  than 
listen  to  a  repetition  of  John  Scott's  argument "  for  the 
prosecution.  This  is  certainly  a  serious  defect  in  any  judge; 
and  if  the  guiding  principles  of  Eldon's  judgments  had 
been  as  clearly  enunciated  and  in  as  general  terms  as  those 
of  Hardwicke,  the  volume  of  his  decisions,  the  care  with 
which  he  considered  them,  the  weight  of  his  authority  and 
the  force  of  his  example,  would  have  gone  far  to  remove 
the  blight  of  uncertainty  which  rested  upon  the  law  in  his 
day. 

But  with  all  their  involution  in  mere  phraseology  Lord 
Eldon's  decisions,  which  extend  through  thirty-two  volumes 
of  reports,  are,  in  substance,  monuments  of  learning,  acumen 
and  practical  application  of  equity.  His  judgments  were 
seldom  appealed  from  and  hardly  ever  reversed ;  and,  except 
where  the  law  has  since  been  altered  by  statute,  time  has  not 
materially  impaired  their  authority.  Out  of  the  vast  body  of 
his  work,  covering  the  whole  equitable  jurisdiction,  it  will 
suffice  to  call  particular  attention  to  the  refinement  and  pre- 
cision which  he  gave  to  the  administration  of  estates  in  chan- 
cery and  in  bankruptcy,  to  the  equities  of  mortgagors  and 
mortgagees,  to  the  remedy  of  specific  performance,  and  the 
exemplary  liberality  with  which  he  construed  charitable  be- 
quests. Like  many  of  his  contemporaries,  Eldon  had  very 
crude  ideas  of  trade;  the  extent  to  which  he  pushed  the 
ancient  doctrines  of  forestalling  and  regrating  seems,  in  this 
day,  ridiculous.  Nevertheless,  his  historical  position  must 
always  remain  conspicuous,  for  he  definitely  brought  to  a 
conclusion  the  work  of  binding  down  the  chancellor's  discre- 

*6  Vesey  263;  It  do.  203;  1  Ves.  &  B.  59;  1  Rose  253;  1  Glyn  & 
J.  384;  2  Swanst.  36;  2  Bligh  P.  C.  402. 


736  V.    BENCH   AND   BAR 

tion.  "  The  doctrines  of  this  court,"  he  said  in  Gee  v. 
Pritchard,  2  Swanst.  414,  "  ought  to  be  as  well  settled  and 
made  as  uniform  almost  as  those  of  the  common  law,  laying 
down  fixed  principles,  but  taking  care  that  they  are  to  be 
applied  according  to  the  circumstances  of  each  case.  I  can- 
not agree  that  the  doctrines  of  this  court  are  to  be  changed 
with  every  succeeding  judge.  Nothing  would  inflict  or  give 
me  greater  pain  in  quitting  this  place  than  the  recollection 
that  I  had  done  anything  to  justify  the  reproach  that  the 
equity  of  this  court  varies  like  the  chancellor's  foot."  From 
his  time  onward  the  development  of  equity  has  been  effected 
mainly  by  strict  deduction  from  the  principles  of  decided 
cases,  and  the  work  of  succeeding  chancellors  has  been  prac- 
tically confined  to  the  elaboration  of  these  principles  by 
repeated  review  and  definition.1 

The  first  competent  successor  to  Eldon  was  Cottenham. 
Lyndhurst  (1827-30;  1834-35;  1841-46)  was  a  consum- 
mate orator,  but  he  had  no  training  in  equity  and  shone 
principally  in  politics.  Brougham's  chancellorship  (1830-34) 
was  only  an  incident  in  his  varied  career.  As  a  statesman  he 
has  left  an  abiding  mark  on  the  English  legal  system.  For 
nearly  fifty  years  he  struggled  with  indefatigable  industry 
arid  extraordinary  ability  in  the  cause  of  reform.  The  vast 
scheme  of  law  reform  which  he  laid  before  parliament  in  1828 
bore  ample  fruit  in  after  times.  The  overthrow  of  the  cum- 
brous and  antiquated  machinery  of  fines  and  recoveries,  the 
abolition  of  the  Court  of  Delegates  and. the  substitution  for 
it  of  the  Judicial  Committee  of  the  Privy  Council,  the  insti- 
tution of  the  Central  Criminal  Court  and  the  Bankruptcy 
Act,  are  a  few  of  his  herculean  labors.  Although  he  always 

*Lord  Eldon's  leading  cases  are:  Ellison  v.  Ellison,  6  Ves.  656; 
Mackreth  v.  Symmons,  15-329;  Murray  v.  Elibank,  10-84;  Aldrich  v. 
Cooper,  8-382;  Brece  v.  Stokes,  11-319;  Howe  v.  Dartinouth,  7-137; 
Huguenen  v.  Baseley,  14-273;  Ex  parte  Pye,  18-140;  Seton  t>.  Slade, 
7-265;  Agar  v.  Fairfax,  17-533;  Murray's  Benbow,  4  St.  N.  1410; 
Lucena  v.  Crawford,  2  Bos.  &  P.  (N.  R.)  317;  Duffreld  v.  Elwes,  1 
Bligh  (Ns.)  499;  Jeeson  v.  Wright,  2  Bligh,  54;  Evans  v.  Bicknell,  6 
Ves.  174;  Booth  v.  Blundell,  19  Ves.  494;  Callow  ».  Walker,  7-1; 
Southey  v.  Sherwood,  2  Meriv,  435;  Wykham  v.  Parker,  19  Ves.  21; 
Gee  v.  Pritchard,  2  Swanst.  414;  Davis  v.  Duke  of  Marlborough,  2 
Swanst.  162;  Atty.  Gen.  v.  Forstes,  10  Ves.  342;  Landsdowne  ».  Lans- 
downe,  2  Bligh,  86;  Gordon  v.  Majoribanks,  6  Dow,  111. 


SO.     VEEDER:  A  CENTURY  OF  JUDICATURE  737 

upheld  the  cause  of  liberty  and  humanity,  his  character 
carried  little  moral  force.  As  chancellor  he  worked  with 
extraordinary  energy,  and  expedited  the  work  of  the  court 
in  marked  contrast  with  Eldon.  But  he  had  been  trained  in 
the  common  law,  and  was  little  fitted  either  by  learning  or 
by  temperament  for  the  judicial  duties  of  the  office.  "  If  he 
had  known  a  little  law,"  said  the  caustic  St.  Leonards,  "  he 
would  have  known  a  little  of  everything.1  Waring  v.  War- 
ing, 6  Moo.  P.  C.  341,  is  a  characteristic  specimen  of  his 
judicial  style. 

Cottenham  (1836-41;  1846-50)  brought  to  the  discharge 
of  his  duties  a  complete  mastery  of  the  existing  principles 
and  practice  of  the  court  of  chancery,  which  he  regarded  as 
the  perfection  of  human  wisdom.  Outside  this  sphere  his 
learning  was  limited ;  and  his  mind  was  vigorous  and  sound 
rather  than  broad  and  subtle.  He  was  an  able  and  pains- 
taking, if  somewhat  cautious,  judge.2  His  successor,  Truro 
(1850-52),  a  learned  but  plodding  lawyer,  left  the  Court  of 
Common  Pleas,  where  he  was  serving  with  credit,  to  assume 
the  chancellorship,  for  which  he  had  no  particular  qualifica- 
tions. He  sacrificed  his  life  in  attempting  to  cope  with  the 
work.  Lord  St.  Leonards  (1852),  who  next  held  the  seals 
for  a  brief  period,  within  his  limits  realized  as  nearly  as 
possible  the  ideal  of  an  infallible  oracle  of  the  law.  In  com- 
plete contrast  to  Brougham,  who  knew  a  little  of  everything, 
St.  Leonards  knew  a  great  deal  of  one  thing  and  little 
besides.  In  comprehensive  and  accurate  knowledge  of  the 

1  Ferguson  v.  Kinnoul,  9  Cl.  &  F.  250;  Stokes  v.  Herron,  12  do.  163; 
Birtwhistle  v.  Vardell,  2  do.  581 ;  7  do.  895 ;  Cookson  v.  Cookson,  12  do. 
121;  O'Connell's  case,  11  do.  155;  R.  v.  Millis,  10  do.  534;  Atwood  ». 
Small,  6  do.  232;  Wright  v.  Tatham,  5  do.  670;  Purves  v.  Landell,  12 
Cl.  &  F.  97;  Egerton  v.  Brownlow,  4  H.  L.  Cas.  1;  Greenough  v.  Gas- 
Hell,  1  Myln.  &  K.;  McCarthy  v.  De  Caix,  2  Russ.  &  Mylne;  Cooper 
r.  Bockett,  4  Notes  of  Cases,  685. 

*  Auchterarder  case,'  6  Cl.  &  F.  46;  O'Connell's  case,  11  do.  155; 
Tullett  v.  Armstrong;  Scarborough  v.  Borman,  4  Myln  &  Cr.  120; 
Cookson  v.  Cookson,  12  Cl.  &  F.  121;  Atwood  v.  Small,  6  do.  232; 
Shore  v.  Wilson,  9  do.  353;  R.  v.  Millis,  10  do.  534;  Stokes  v.  Heron, 
12  do.  163;  Dunlop  v.  Higgins,  1  H.  L.  Cas.  351;  Wilson  v.  Wilson,  1 
do.  538;  Faun  v.  Malcomson,  1  eft.  637;  Thynne  v.  Earl  of  Glengall, 
2  do.  131 ;  Duke  of  Brunswick  v.  King  of  Hanover,  2  do.  1 ;  Foley  v. 
Hill,  2  do.  28;  Piers  v.  Piers,  2  do.  331;  Charlton's  case,  2  Myln  &"Cr. 
316;  Pym  v.  Locker,  5  do.  29. 


738  V.     BENCH   AND   BAR 

law  of  real  property  he  stood  for  forty  years  without  a 
rival.  His  judgments  were  always  delivered  promptly,  with- 
out notes,  and  were  seldom  reversed.  Yet  it  must  be  admitted 
that,  from  the  technical  character  of  the  subject  and  his 
apparent  lack  of  general  culture,  they  are  dry  reading.1  St. 
Leonards  was  more  competent  than  any  of  his  contempo- 
raries to  reform  the  law  of  real  property,  but  he  seems  to 
have  been  quite  contented  with  it  as  it  was.  He  literally 
lived  in  the  law  during  his  lifetime  and  bequeathed  to  it  a 
leading  case  upon  his  death.  His  will  could  not  be  found, 
and  its  contents  were  established  by  oral  evidence.  Cran- 
worth  (1852-58),  whose  professional  training  had  been  in 
chancery,  came  to  the  woolsack  after  his  long  experience  as 
a  baron  of  the  Exchequer.  He  thus  combined  a  large 
acquaintance  with  both  systems.  He  was  a  man  of  high 
character  and  a  sound  and  acute  judge.  His  extreme  caution 
and  timidity,  however,  limited  the  influence  which  his  learn- 
ing and  experience  would  otherwise  have  exerted.2  Cran- 
worth  was  followed  by  two  common  law  chancellors,  Chelms- 
ford  and  Campbell.  Chelmsford  (1858-59;  1866-68)  had 
shared  with  Sir  William  Follett  the  honors  of  the  bar,  and  it 
has  been  customary  to  decry  his  judicial  service,  on  the 
general  theory,  apparently,  that  an  eloquent  lawyer  is  not 
apt  to  be  a  profound  judge.  Undoubtedly  he  would  have 
taken  a  higher  position  on  the  common  law  bench ;  but  a  fair 
examination  of  his  work  shows  that  he  was  a  very  respectable 
judge.  Certainly  he  discharged  his  duties  with  assiduity,  and 
his  numerous  judgments  are  often  instructive  in  consequence 
of  his  habit  of  reviewing  prior  authorities.3  Lord  Camp- 

1  Egerton  v.  Brownlow,  4  H.  L.  Cas.  203;  Maunsell  v.  White,  4  do. 
1037;  Jeffreys  v.  Boosey,  4  do.  842;  Lumley  v.  Wagner,  5  De  G.  &  S. 
485;  Grey  v.  Pearson,  6  H.  L.  Cas.  61;  Brook  v.  Brook,  9  do.  195; 
Colyer  v.  Finch,  5  do.  905;  Savery  v.  King,  5  do.  627;  Bargate  v. 
Shortridge,  5  do.  297;  Jordan  v.  Money,  5  do.  185. 

*Cox  v.  Hickman,  8  H.  L.  Cas.  267;  Egerton  v.  Brownlow,  4  do.  1; 
Jeffreys  v.  Boosey,  4  do.  842;  Oakes  v.  Turquand,  2  do.  369;  Brook 
v.  Brook,  9  do.  195;  Ranger  v.  Great  Western  Ry.  5  do.  72;  Ricket  v, 
Metropolitan  Ry.  2  E.  &  I.  App.  174;  Rylands  v.  Fletcher,  3  do.  330; 
Shaw  v.  Gould,  3  do.  55;  Startup  v.  Macdonald,  12  I,.  J.,  Ex.  477; 
Clift  v.  Schwabe,  17  L.  J.,  C.  P.  2;  Jftoney  v.  Jorden,  2  De  G.  M.  &  G., 
318 ;  Hills  v.  Hills,  8  M.  &  W.  401 ;  Jones  v.  Lock,  1  Ch.  App.  25. 

*  Chasemore  v.  Richards,  7  H.  L.  Cas.  360;  Peek  v.  Gurney,  6  E.  & 
I.  App.  377;  Bain  ».  Fothergill,  7  do.  170;  Hollins  v.  Fowler,  7  do. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  739 

bell's  brief  chancellorship  (1859-61)  is  really  a  minor  feature 
of  his  career,  owing  to  the  advanced  age  at  which  he  reached 
the  woolsack.  With  his  strong  intellect  and  untiring  indus- 
try he  made  a  respectable  equity  judge,  but  his  overbearing 
nature  caused  much  friction  where  steady  co-operation  was 
needed. 

The  inferior  chancery  tribunals  were  the  Rolls  Court  and 
the  Vice-Chancellor's  Court.  The  judicial  standing  of  the 
Rolls  Court  was  established  by  Sir  William  Grant  (1801- 
18).  Kenyon,  the  most  prominent  prior  incumbent  of  the 
office,  discharged  the  duties  of  the  office  with  his  customary 
ability  and  expedition,  but  he  was  not  really  in  sympathy 
with  the  equitable  jurisdiction  and  habitually  decided  his 
cases  on  the  narrowest  grounds,  avoiding  the  enunciation  of 
general  principles.  Grant  dignified  the  office  with  his  high 
character  and  eminent  abilities.  He  was  unquestionably  the 
most  eminent  judge  sitting  in  this  court  until  the  time  of 
Jessel.  Calm,  deliberate,  patient  in  hearing,  and  clear, 
luminous,  subtle  and  comprehensive  in  judgment,  his  power- 
ful intellect  made  a  deep  impression  upon  his  contempo- 
raries. This  reputation  was  enhanced  by  his  parliamentary 
service,  which  was  even  more  distinguished  than  his  service  as 
a  judge.  His  opinions,  which  are  comparatively  few  in  num- 
ber, are  mostly  brief  but  comprehensive  statements  of  his 
conclusions,  giving  slight  indications  of  that  masculine  rea- 
soning which  was  the  principal  feature  of  his  parliamentary 
oratory.  The  office  was  at  this  time  a  modest  one.  The 
master  of  the  rolls  simply  supplied  the  place  of,  the  chancellor 
when  the  latter's  political  duties  required  his  presence  else- 
where. On  other  occasions,  when  requested  by  the  chancellor, 
the  master  of  the  rolls  sat  with  the  chancellor  to  give  advice 
and  assistance  in  cases  argued  before  both.  In  order  that 
he  might  assist  the  chancellor  when  present  and  supply  his 
place  during  occasional  absence,  it  was  arranged  that  during 

762;  Robinson  v.  Mallett,  7  do.  802;  Rankin  v.  Potter,  6  do.  83;  Over- 
end  v.  Gurney,  5  do.  480;  Daniel  v.  Metropolitan  Ry.,  5  do.  49;  Knox 
v.  Gye,  5  do.  656;  Duke  of  Buccleuch,  5  do.  418;  Ricket  «.  Metropol- 
itan Ry.,  2  do.  174;  Shaw  v.  Gould,  3  do.  55;  Hammersmith  Ry.  v. 
Brand,  4  do.  171;  Lister  v.  Ferryman,  4  do.  521;  Gilbin  v.  Mr  Mullen. 
2  P.  C.  318 ;  Steele  v.  No.  Met.  Ry.,  15  W.  R.  597. 


740  V.    BENCH   AND   BAR 

the  sitting  of  the  chancellor  the  separate  business  of  the 
master  of  the  rolls  should  be  transacted  in  the  evening. 
Accordingly,  during  the  greater  part  of  the  judicial  year, 
the  sittings  of  the  master  of  the  rolls  in  his  own  court  were 
held  in  the  evening. 

The  office  at  its  best  under  Grant  was  not  to  be  compared 
with  its  position  in  later  times  when  the  master  ceased  to  sit 
as  adviser  to  the  chancellor,  and  was  invested  with  a  separate 
and,  in  some  respects,  independent  judicial  authority  in  his 
own  court.  This  system  continued  with  but  little  change 
during  the  short  terms  of  Grant's  immediate  successors,  Plu- 
mer  (18,18-24),  Gifford  (1824-26),  Copley  (1826-27)  and 
Leach  (1827-34).  The  office^  probably  reached  its  lowest 
point  under  Leach,  who  was  fitted  neither  by  learning  nor  by 
temperament  for  judicial  office.  Much  was  expected  from 
the  appointment  of  Pepys  (1834-36) ;  but  he  was  soon 
advanced  to  the  woolsack  as  Lord  Cottenham.  ^Improvement 
is  noticeable  soon  after  the  advent  of  Lord  Langdale  (1836). 
From  his  time  the  decisions  of  the  Rolls  Court  have  been 
regularly  reported  in  a  separate  series  of  reports,  first  by 
Keen  (1836-38)  and  afterwards  by  Beavan  (1838-66).  Lord 
Langdale  administered  the  duties  of  the  office,  at  a  time  when 
its  scope  had  been  considerably  enlarged,  with  industry  and 
ability,  as  the  few  successful  appeals  from  his  judgments 
attest.  If  his  reputation  as  a  judge  fell  somewhat  below  the 
expectations  raised  by  his  distinguished  professional  career, 
his  lucid  and  methodical  exposition  of  the  facts  with  which  he 
had  to  deal  gave  perfect  satisfaction  to  those  who  were  most 
interested  in  a  just  decision.  His  lofty  character  and  abso- 
lute impartiality  inspired  the  utmost  confidence. 

The  unbearable  arrears  in  chancery  during  Lord  Eldon's 
administration  finally  led  to  the  appointment  of  a  vice- 
chancellor  in  1813.  But  as  constituted,  the  new  court  failed 
for  many  years  to  give  satisfaction.  The  first  incumbent, 
Plumer  (1813)  was  slower  than  Eldon  himself;  while  his 
successor,  Leach  (1818-27),  disposed  of  his  cases  with  such 
speed  that  a  witty  barrister  comparing  Leach's  court  with 
that  of  the  chancellor,  characterized  the  former  as  terminer 
sans  oyer  and  the  latter  as  oyer  sans  terminer,  and  suggested 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  741 

that  Leach  employ  his  spare  time  in  setting  his  decided  cases 
back  on  the  calendar  and  hearing  the  other  side.  Shadwell 
(1827-50)  was  an  improvement  upon  his  immediate  predeces- 
sors ;  but  the  most  efficient  assistance  in  chancery  came  with 
the  appointment  of  Knight-Bruce  (1841-51)  and  Wigram 
(1841-51)  as  additional  vice-chancellors.  At  the  same  time 
the  equitable  jurisdiction  of  the  Court  of  Exchequer  was 
taken  away.  Knight-Bruce  was  a  judge  of  great  capacity 
who  afterwards  distinguished  himself  as  a  lord  justice  of 
appeal  in  chancery.  Wigram  was  profoundly  learned  in 
technical  equity,  and  his  opinions  have  always  been  held  in 
high  esteem  for  their  lucid  exposition  of  equitable  principles. 

(6)  Common  Law  Courts 

During  the  first  quarter  of  the  century  the  Court  of 
King's  Bench  practically  monopolized  common  law  litigation. 
Lord  Ellenborough,  the  chief  justice  of  this  court  at  the 
beginning  of  the  century  (1802-18),  was  unquestionably  the 
ablest  judge  among  Lord  Mansfield's  immediate  successors. 
He  was  a  man  of  more  general  for^e  than  his  predecessor, 
Kenyon,  and  his  store  of  practical  knowledge  was  quite  as 
large.  Although  a  judge  of  unquestioned  integrity,  he  was 
nevertheless  in  many  ways  a  reactionist.  His  strong  political 
and  religious  opinions,  which  often  influenced  his  judgment 
in  criminal  causes,  savored  of  the  past,  and  he  sturdily 
opposed  the  rapidly  rising  sentiment  for  reform.  In  ordi- 
nary civil  litigation,  however,  he  gave  great  satisfaction,  and 
his  clear  and  concise  opinions  are  still  held  in  high  esteem. 
He  served  at  a  time  when  the  Napoleonic  wars  gave  rise  to 
novel  and  intricate  problems  in  commercial  law,  and  the  skill 
and  judgment  with  which  he  determined  these  questions  may 
be  studied  to  advantage  in  Campbell's  nisi  prius  reports.1 

*  See  also  Higham  v.  Ridgeway,  1  East.  109 ;  Elwes  v.  Mawe,  3  do. 
98;  Wain  v.  Warlters,  5  do.  10;  Vicars  v.  Wilcocks,  8  do.  1;  Godsall 
v.  Boldero,  9  do.  72;  Horn  v.  Baker,  9  do.  215;  Disbury  v.  Thomas, 
14  do.  323;  Roe  d.  Earl  of  Berkeley  v.  Archbishop  of  York,  6  do.  101; 
Erie  «.  Rowcroft,  8  do.  133;  Tanner  v.  Smart,  6  Barn.  &  Cress,  604. 
His  political  prepossessions  may  be  studied  in  the  numerous  state 
prosecutions  over  which  he  presided,  reported  in  the  collection  of 


742  V.    BENCH   AND   BAR 

It  is  noticeable  that  the  popularity  of  the  King's  Bench 
during  this  period  was  due  almost  entirely  to  the  energy  and 
ability  of  its  chief  justice.  His  sole  associate  of  first-rate 
ability  was  Bay  ley  (1808-30),  whose  opinion  in  commercial 
cases  carried  great  weight.  During  the  tenure  of  Lord 
Ellenborough's  successor,  Charles  Abbott,  afterwards  Lord 
Tenterden  (1818-32),  this  condition  of  affairs  was  reversed; 
the  reputation  of  the  court  was  then  due  in.  large  measure 
to  the  puisnes.  Tenterden  was  inferior  to  his  predecessor  in 
force  of  intellect,  and  was  surpassed  by  some  of  his  associates 
in  acuteness  and  learning.  But  he  was  a  judge  of  liberal 
tendencies,  moderation  and  good  sense.  These  qualities  are 
most  conspicuous  in  his  clear  and  practical  opinions,  which, 
particularly  in  commercial  cases,  still  command  respect. 
During  this  period  the  court  was  highly  efficient.  "  I  do  not 
believe,"  says  Lord  Campbell,  "  that  so  much  important  busi- 
ness was  ever  done  so  rapidly  and  so  well  before  in  any  other 
court  that  ever  sat  in  any  age  or  country."  The  labors  of 
three  distinguished  puisnes,  Bayley,  Holroyd  (1816-28),  and 
Littledale  (1824-41),  contributed  materially  to  this  high 
standing.  These  three  judges  represent  the  best  fruits  of 
the  system  of  special  pleading,  and  their  labors,  so  far  as 
they  are  capable  of  separation  from  an  antiquated  procedure, 
have  stood  the  test  of  time. 

The  wave  of  reform  precipitated  by  the  Reform  Bill 
stirred  even  the  stagnant  waters  of  the  law.  The  Court  of 
Exchequer  Chamber  was  made  a  regular  and  permanent 
intermediate  court  of  appeal  from  each  of  the  superior  courts 
of  common  law.  The  ancient  and  anomalous  High  Court  of 
Delegates,  which  had  been  established  in  the  reign  of  Henry 
VIII  to  take  up  the  appellate  jurisdiction  in  ecclesiastical 
matters  theretofore  exercised  by  the  pope,  was  at  length 
abolished,  and  its  appellate  jurisdiction  was  conferred  upon 
the  Judicial  Committee  of  the  Privy  Council,  which  was  now 
made  a  definite  and  serviceable  tribunal  with  a  well-defined 
jurisdiction.  By  the  Uniformity  of  Procedure  Act  the  con- 
State  Trials,  volumes  twenty-three  to  thirty-one.  The  most  important 
of  these  are  the  trials  of  Peltier,  Hardy,  Horne-Tooke,  Stone,  Despard, 
Johnson,  Hunt,  Lambert  and  Watson. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  743 

current  jurisdiction  of  the  three  superior  courts  of  common 
law  was  officially  recognized,  and  a  central  criminal  court 
was  established.  The  antiquated  and  cumbrous  machinery 
of  fines  and  recoveries  was  finally  abolished,  and  a  general 
bankruptcy  act  ameliorated  the  condition  of  insolvent  debtors. 
But  the  movement  in  favor  of  legal  reform  was  not  wide- 
spread, and  comparatively  little  was  accomplished.  In  fact, 
the  quarter  century  following  the  Reform  Bill  is  significant 
only  because  it  marks  the  limits  of  the  influence  of  Baron 
Parke  in  the  common  law  courts. 

The  Queen's  Benth  at  the  beginning  of  this  period  was  still 
the  ablest  as  well  as  the  most  prominent  of  the  three  courts 
of  common  law.  Of  the  two  chief  justices  during  this  time, 
Lord  Denman  (1832-50),  the  first,  was  a  great  and  good 
man,  whose  predisposition  to  individual  liberties  was  a  new 
departure  in  a  chief  of  this  court.  His  judgment  in  Stock- 
dale  v.  Hansard  is  a  monument  of  learning  and  independence.1 
Compared  with  his  immediate  predecessors  he  could  not  be 
called  a  great  lawyer  or  a  strong  judge,  but  his  high  char- 
acter and  attractive  personality  won  universal  esteem.  *'  To 
have  seen  him  on  the  bench,  in  the  administration  of  justice," 
said  Charles  Sumner,  "  was  to  have  a  new  idea  of  the  eleva- 
tion of  the  judicial  character."  Campbell  (1850-59),  his 
successor,  whose  character  is  much  less  to  be  admired,  sur- 
passed him  in  learning  and  efficiency.  With  a  strong  intel- 
lect, wide  knowledge  and  untiring  industry,  Campbell  made 
during  his  short  term  a  lasting  reputation.2 

Of  the  prominent  puisnes  during  this  period,  Littledale 

'See  also  R.  v.  O'Connell,  Cl.  &  F.,  155,  R.  v.  Millis,  10,  do.  534; 
Wolveridge  v.  Steward,  3  L.  J.,  Ex.  360;  Neal  v.  Mackenzie,  6  do.  263; 
Nepean  v.  Knight,  7  do.  335;  -Muspratt  v.  Gregory,  7  do.  385;  Rhodes 
v.  Smethurst,  9  do.  330;  Davies  v.  Lowndes,  12  do.  506;  McCallum  v. 
Mortimer,  11  do.  429. 

'Hochster  v.  De  la  Tour,  2  E.  &  B.  678;  Queen  v.  Bedfordshire, 
4  do.  535;  I^vy  v.  Green,  8  do.  575;  Brass  v.  Maitland,  6  do.  70; 
Humphries  v.  Brbgden,  20  L.  J.,  Q.  B.  10;  Harrison  jo.  Bush,  25  do.  25; 
Wheelton  v.  Hardisty,  26  do.  265;  In  re  Alicia  Race,  26  do.  169;  Hum- 
frey  v.  Dale,  26  do.  137;  Thompson  v.  Hopper,  26  do.  18;  Queen  v. 
Munneley,  97  do.  345;  Lewis  v.  Levy,  27  do.  282;  Knight  v.  Faith,  19 
do.  509;"  Morton  v.  Tibhett,  19  do.  382;  De  Haher  v.  Queen  of  Portu- 
gal, 20  do.  488;  Shallcross  v.  Palmer,  20  do.  367;  Boosey  v.  Jeffries. 
20  L.  J.  Ex.  354;  Lynch  v.  Knight,  9  H.  L.  Cas.  580;  Gibson  v.  Small,  4 
do.  352;  Brook  r.  Brook,  9  do.  195. 


744  F.     BENCH    AND    BAR 

(1824-41),  a  learned  but  scholastic  lawyer,  held  over  from 
earlier  time,  and  Parke  (1828-34)  spent  a  few  years  in  this 
court  before  going  to  the  scene  of  his  more  distinguished 
labors  in  the  Exchequer.  During  the  latter  part  of  the 
period  the  court  was  further  strengthened  by  the  accession  of 
Wightman  (1841-63)  and  Erie  (1846-59).  Wightman  was 
one  of  the  last  of  the  great  school  of  special  pleaders  ;  but 
he  was  besides  a  man  of  broad  and  practical  views,  and  made 
an  admirable  judge.  He  sat  in  the  Queen's  Bench  twenty- 
three  years,  the  trusted  colleague  of  three  chief  justices.1 
According  to  the  unanimous  voice  of  his  contemporaries,  Erie 
was  one  of  the  best  of  the  earlier  judges.  He  had  that  power 
of  quickly  grasping  the  essential  features  of  a  case  which 
marks  the  legal  mind;  and,  although  his  mind  lacked  flexi- 
bility and  subtlety,  and  he  was  extremely  tenacious  of  his  own 
views,  the  common  sense  which  generally  characterized  his 
work  made  him  a  safe  judge.2  But  the  ablest  associate 
throughout  the  period  was  Patteson  (1830-52).  He  sat  in 
this  court  twenty-one  years  ;  he  was  the  strongest  man  in 
the  court,  and  largely  influenced  its  action.  It  was  due 
mainly  to  his  vigorous  intellect  and  great  learning  that  the 
court  was  able  to  maintain  its  standing  during  this  period, 
in  the  face  of  the  rapidly  increasing  reputation  of  the 
Exchequer.3  Coleridge  (1835-58)  was  a  very  competent 
lawyer  and  a  man  of  scholarly  attainments.  His  opinions 
are  among  the  most  finished  to  be  found  in  the  earlier 
reports.4  His  opinion  in  the  case  of  Lumley  v.  Gye,  upon  the 


v.  Schwabe,  17,  L.  J.,  C.  P.,  2;  Howard  v.  Gossett,  14  L.  J. 
Q.  B.,  373;  Chasemore  v.  Richards,  7  H.  L.  Cas.  360;  Jeffreys  v.  Boosey,  4 
do.  842;  Lumley  v.  Gye,  2  E.  &  B.  216. 

'Kennedy  v.  "Brown,  13  C.  B.  (N.  S.)  677;  lonides  v.  Universal 
Marine  Association,  14  do.  259;  R.  v.  Rowlands,  5  Cox  Cr.  Cas.  406; 
R.  v.  Rowton,  10  do.  25;  Thompson  v.  Hopper,  25  L.  J.,  Q.  B.,  240; 
Wheelton  ».  Hardisty,  26  do.  265;  Ricket  v.  Metropolitan  Ry.  34  do. 
257;  Ex  parte  Fernandez,  30  L.  J.,  C.  P.  321;  Brand  v.  Hammer- 
smith Ry.  36  L.  J.,  Q.  B.  139;  Gibson  v.  Small,  4  H.  L.  Cas.  352; 
Jeffreys  v.  Boosey,  %4  do.  842;  Lumley  v.  Gye,  2  E.  &  B.  216;  Kay  v. 
Wheeler,  L.  R.  2  C.  P.  302. 

»  R.  v.  O'Connell,  11  Cl.  &  F.  155;  Startup  v.  Macdonald,  12  L.  J., 
Ex.  477;  Clift  v.  Schwabe,  17  L.  J.,  C.  P.  2;  East  Counties  Ry.  ». 
Broom,  20  L.  J.,  Ex.  196;  Wright  v.  Tatham,  5  Cl.  &  F.  670;  R.  v. 
Rowlands,  5  Cox  Cr.  Cas.  406. 

'  Some  of  his  best  efforts  are  Lumley  v.  Gye,  2  E.  &  B.  216;  Mennie 
r.  Blake,  225,  L.  J.,  Q.  B.  399;  Blackmore  v.  B.  &  E.  Ry.  Co.,  27  do. 


20.     VEEDER:  A  CENTURY  OF  JUDICATURE  745 

malicious  procurement  of  a  breach  of  contract,  is  a  good 
specimen  of  his  style. 

The  work  of  the  Court  of  Common  Pleas  was  limited  in 
amount  during  this  period.  Until  1841  it  was  a  closed  court, 
and  only  sergeants  could  argue  cases  there.  It  enjoyed  the 
services,  however,  of  some  very  able  lawyers.  Of  its  three 
chiefs,  Tindal  (1829-46),  Wilde  (1846-50)  and  Jervis  (1850- 
56),  Tindal  and  Jervis  take  high  rank  as  magistrates.  Clear 
sighted,  sagacious  and  quick  of  apprehension,  they  were 
masters  at  nisi  prius.  Tindal  was  furthermore  a  profound 
lawyer,  and  his  numerous  opinions  in  this  court  and  in  the 
Exchequer  Chamber  display  grasp  of  principle,  accuracy  of 
statement,  skill  in  analysis  and  wide  acquaintance  with  prec- 
edents.1 Wilde  was  a  learned  but  plodding  lawyer  whose 
subsequent  elevation  to  the  woolsack  only  served  to  detract 
by  comparison  from  his  superior  reputation  as  a  common 
law  judge. 

Of  the  puisnes,  Maule  (1839-55),  who  served  through  most 
of  this  period,  was  probably  the  most  highly  endowed.  No 
one  ever  had  a  finer  sense  of  the  anomalies  and  incongruities 
of  English  law,  and  he  never  missed  an  opportunity  to  bring 
to  bear  on  them  his  unrivalled  powers  of  sarcasm  and  caustic 
humor.  "  As  the  rule  is  well  established  by  decisions,"  he 
ironically  remarks  in  Emmens  v.  Elderton,  4  H.  L.  Cas.  624, 
"  it  is  not  necessary  to  give  any  reasons  in  its  support,  or  to 
say  anything  to  show  it  to  be  a  good  and  useful  one."  His 
subtle  mind  was  balanced  by  good  sense  and  entire  freedom 
from  technicality.2  But  his  mental  gifts  were  smothered  in 

167;  Wilson  v.  Eden,  19  do.  104;  R.  v.  Scott,  25  L.  J.,  Mag.  Cas.  128; 
Egerton  v.  Brownlow,  4  H.  L.  1;  Jeffreys  v.  Boosey,  4  do.  842; 
Wright  v.  Tatham,  5  Cl.  &  F.  670;  Shore  v.  Wilson,  9  do.  353. 

1  Acton  v.  Blundell,  13  L.  J.,  Ex.  289;  Marston  v.  Fox,  8  do.  293; 
Panton  v.  Williams,  10  do.  545;  James  v.  Plant,  6  do.  260;  Hitchcock 
v.  Cocker,  6  do.  266;  Scarborough  v.  Saville,  6  do.  270;  Howden  ». 
Simpson,  8  do.  281;  Chanter  v.  Leese,  9  do.  327;  Sadler  v.  Dixon,  11 
do.  435;  Whyte  v.  Rose,  11  do.  457;  Collins  v.  Evans,  13  L.  J.,  Q.  B. 
180;  R.  v.  Frost,  4  St.  Tr.  130;  Charge  to  Grand  Jury,  do.  1411;  R. 
v.  O'Connell,  11  Cl.  &  F.  155;  R.  v.  Millis,  10  do.  534;  Shore  v.  Wilson, 
9  do.  353;  Coxhead  v.  Richards,  2  C.  B.  569;  Flight  v.  Booth,  1  Bing. 
N.  C.  377;  Cook  v.  Ward,  4  M.  &  P.  99;  Kemble  v.  Farren,  3  do. 
425;  Margetson  v.  Wright,  5  do.  606. 

1  R.  v.  Burton,  1  Dears.  C.  C.  282;  Borrodaile  v.  Hunter,  5  M.  &  G. 
639;  M'Naghten's  case,  10  Cl.  &  F.  199;  Shore  v.  Wilson,  9  Cl.  &  F. 
353. 


746  V.     BENCH   AND   BAR 

indolence,  and  he  is  chiefly  remembered  for  his  cynical  humor. 
It  was  he  who,  while  reading  a  novel  in  bed  by  candle  light, 
set  fire  to  his  chambers  and  burned  down  a  large  section  of 
the  Temple.  Cresswell  (1842-58)  and  E.  V.  Williams  (1846- 
65)  were  the  strong  judges  in  this  court  during  the  latter 
part  of  the  period.  Cresswell  was  an  accomplished  lawyer 
who  afterwards  added  to  his  reputation  in  the  probate  and 
matrimonial  court.  He  was  essentially  a  broad-minded 
judge.  Williams,  the  second  generation  in  a  line  of  great 
lawyers  of  that  name,  was  profoundly  learned  in  the  common 
law,  and  his  concise  and  accurate  if  somewhat  technical  opin- 
ions have  always  been  respected.  He  was  somewhat  labored 
in  expression,  but  he  had  great  influence  with  his  associates 
during  his  twenty-two  years'  service.1 

The  Court  of  Exchequer  came  into  great  prominence  dur- 
ing this  period.  The  first  two  chief  barons,  Lyndhurst 
(1831-34)  and  Abinger  (1834-44),  failed  to  sustain  on  the 
bench  the  great  reputations  they  had  made  at  the  bar.  Both 
were  men  of  great  gifts,  but  their  success  as  advocates  was 
due  rather  to  their  knowledge  of  men  than  to  any  mastery  of 
legal  principles.  Pollock  (1844-56),  on  the  other  hand,  who 
succeeded  them,  brought  to  the  bench  the  industry  and  gen- 
eral ability  which  had  characterized  his  distinguished  forensic 
career.  There  have  been  many  more  learned  but  few  more 
useful  judges.  His  high-toned  personality  is  reflected  in  his 
scholarly  and  felicitous  opinions,  which,  whether  right  or 
wrong  in  the  result,  are  always  interesting.2  Under  his  ad- 
ministration, with  Parke  (1834-55)  and  Alderson  (1834-57) 
as  associates,  the  Exchequer  reached  its  greatest  influence. 

1  Earl  of  Shrewsbury  v.  Scott,  6  C.  B.  (N.  S.)  1;  Behn  v.  Burness, 
1  B.  &  S.  877;  Ex  parte  Swan,  7  C.  B.  (N.  S.)  400;  Johnson  v.  Stear, 
15  C.  B.  (N.  S.)  30;  Spence  v.  Spence,  31  L.  J.,  C.  P.  189;  Hall  v. 
Wright,  E.,  B.  &  E.  1;  Cooper  v.  Slade,  6  E.  &  B.  447;  Anderson  v. 
Radcliffe,  29  L.  J.,  Q.  B.  128;  Bamford  v.  Turnley,  31  do.  286;  Pen- 
hallow  v.  Mersey  Docks  Co.,  30  L.  J.,  Ex.  329;  Shore  v.  Wilson,  9  Cl. 
&  F.  353;  Wright  v.  Tatham,  5  do.  670;  Roddam  v.  Morley,  1  De  G. 
&  J.  1;  Hounsell  v.  Smith,  7  C.  B.  (N.  S.)  731. 

1  Clift  v.  Schwabe,  17  L.  J.,  C.  P.  2;  Attorney  General  v.  Sillem,  33 
L.  J.,  Ex.  92;  Hall  v.  Wright,  29  L.  J.,  Q.  B.  43;  Egerton  v.  Brown- 
low,  4  H.  L.  Cas.  1;  Gibson  v.  Small,  4  do.  352;  Jeffreys  v.  Boosey, 
4  do.  842;  Wood  v.  Wand,  3  Ex.  774;  Molton  ».  Caurraux,  4  do.  17; 
Bellamy  v.  Major,  7  do.  389;  Hudson  v.  Roberts,  6  do.  697;  R.  v.  Ab- 
bott, 1  Dears.  C.  C.  273. 


80.     VEEDER:  A  CENTURY  OF  JUDICATURE  747 

It  is  undeniable  that  this  reputation  was  largely  made  by 
Parke  (1834-55).  "Baron  Surrebutter,"  as  he  was  iron- 
ically named,  was  a  modern  Coke,  profoundly  learned  in  the 
common  law  and  indefatigably  industrious  in  its  administra- 
tion. He  possessed  the  ability  in  grasping  and  fathoming 
a  subject  which  is  the  supreme  test  of  judicial  power,  and  his 
extraordinary  memory  enabled  him  to  draw  at  will  upon  his 
vast  store  of  learning.  It  must  be  admitted  that  he  was  a  man 
of  high  character  and  powerful  intellect ;  no  smaller  man 
could  have  accomplished  so  much.  For  more  than  twenty 
years  he  was  the  ruling  power  in  Westminster  Hall.  Con- 
sidering the  state  of  the  law  in  his  day  and  his  fond  adherence 
to  its  formalities  and  precedents,  one's  admiration  for  his 
undoubted  ability  gives  way  to  surprise  that  he  should  have 
required  such  ascendency  over  his  brethren.  Even  so  great 
a  lawyer  as  Willes  said  that  "  to  him  the  law  was  under 
greater  obligations  than  to  any  judge  within  legal  memory." 
For  more  than  twenty  years  he  bent  all  the  powers  of  his 
great  intellect  to  foster  the  narrow  technicalities  and  heighten 
the  absurdities  of  the  system  of  special  pleading.  The  right 
was  nothing,  the  mode  of  stating  it  everything.  Conceive  of 
a  judge  rejoicing  at  non-suiting  a  plaintiff  in  an  undefended 
case,  and  reflecting  only  that  those  who  drew  loose  declara- 
tions brought  scandal  on  the  law!  Any  attempt  to  change 
or  ameliorate  the  law  met  with  his  uncompromising  opposi- 
tion. "  Think  of  the  state  of  the  record,"  was  his  invariable 
response  to  every  effort  to  escape  from  the  trammels  of  tech- 
nicality. He  defeated  the  act  of  parliament  allowing  equi- 
table defences  in  common  law  actions  by  the  exaction  of  all 
but  impossible  conditions,  and  expressed  satisfaction  in  being 
able  to  do  so.  Broad-minded  judges  like  Maule  and  Cress- 
well  struggled  in  vain  against  his  influence.  "  Well,"  Maule 
would  say,  "  that  seems  a  horror  in  morals  and  a  monster  in 
reasoning.  Now  give  us  the  judgment  of  Baron  Parke  which 
lays  it  down  as  law."  Parke  stands  at  the  head  of  the  black- 
letter  lawyers.  It  is  related  that  once  when  one  of  his  breth- 
ren was  ill,  Parke  sent  him  a  special  demurrer.  "  It  was  so 
exquisitely  drawn,"  he  said,  "  that  he  felt  sure  it  must  cheer 
him  to  read  it."  "  He  loved  the  law,"  as  Bramwell  said,  "  and 


748  V.    BENCH   AND   BAR 

like  those  who  do  so  he  looked  with  some  distrust  on  proposals 
to  change  it."  He  sincerely  believed  that  the  interests  of 
justice  were  best  served  by  a  strict  adherence  to  technical 
rules.  The  sixteen  volumes  of  reports  by  Meeson  and  Welsby 
were  his  especial  pride.  "  It  is  a  lucky  thing  that  there  was 
not  a  seventeenth  volume,"  said  Erie,  "  for  if  there  had  been 
the  common  law  itself  would  have  disappeared  altogether 
amidst  the  jeers  of  mankind."  *  In  these  pages,  indeed,  he 
may  be  seen  at  his  best  and  his  worst.  He  was  one  of  the  last 
of  the  judges  who  systematically  delivered  written  opinions. 
They  were  prepared  with  great  fulness  and  care,  and  do  not 
fall  far  short  of  two  thousand  in  number.  Alderson  (1834- 
57)  was  a  strong  associate,  learned,  vigorous  and  efficient, 
and  particularly  capable  as  a  criminal  judge.2  Valuable 
assistance,  particularly  in  its  equitable  jurisdiction,  was 
rendered  in  this  court  by  Rolfe  (1839-50),  who  subsequently 
reached  a  higher  station  as  Lord  Cranworth. 

(c)    Ecclesiastical  and  Admiralty  Courts 

Probate,  matrimonial  and  admiralty  affairs  were  adminis- 
tered for  centuries  by  the  civilians ;  but  they  left  few  records 
of  their  labors.  As  a  system  of  judicial  precedents  this  juris- 

1  When  asked  once  why  he  had  not  written  a  book  he  replied :  "  My 
works  are  to  be  found  in  the  pages  of  Meeson  and  Welsby."  These 
volumes  are  the  best  monument  of  his  industry.  As  most  of  the 
opinions  are  rendered  by  him,  it  is  unnecessary  to  undertake  to  give 
a  comprehensive  selection.  The  following  will  suffice  as  examples: 
Norton  v.  Elain,  2  M.  &  W.  461 ;  Langridge  v.  Levy,  2  do.  461 ;  Nepean 
v.  Knight,  2  do.  894;  Doe  d.  Rees  v.  Williams,  2  do.  749;  Harris  v. 
Butler,  2  do.  539;  Jackson  v.  Cummings,  5  do.  342;  Evans  v.  Jones, 
5  do.  77;  Merry  v.  Green,  7  do.  623;  Acton  v.  Blundell,  12  do.  324; 
King  v.  Hoare,  13  do.  494. 

Among  his  leading  opinions  in  the  House  of  Lords  and  Privy  Coun- 
cil are  Atwood  v.  Small,  6  Cl.  &  F.;  Shore  v.  Wilson,  9  do.  353;  O'Con- 
nell's  case,  11  do.  155;  Gibson  v.  Small,  4  H.  L.  Cas.  352;  Jeffreys  v. 
Boosey,  4  do.  842 ;  Chasemore  v.  Richards,  7  do.  349 ;  Wicker  v.  Hume, 
7  do.  165;  Dolphin  v.  Robbins,  7  do.  390;  Wing  v.  Angrave,  8  do.  183; 
Brook  v.  Brook,  9  do.  195;  Lynch  v.  Knight,  9  do.  587;  Barry  v. 
Buttin,  2  Moo.  P.  C.  480;  Calder  v.  Halket,  3  do.  28. 

'Hadley  v.  Baxendale,  9  Ex.  341;  Wood  v.  Leadbitter,  13  M.  &  W. 
840;  King  v.  Hoare,  13  do.  494;  Skeffington  v.  Whitehurst,  1  Y.  &  C.  1; 
Startup  v.  Macdonald,  12  L.  J.,  Ex.  477;  Egerton  v.  Brownlow,  4  H.  L. 
Cas.  1;  Gibson  v.  Small,  4  do.  352;  Jeffreys  v.  Boosey  4  do.  842; 
O'ConneU's  case,  11  Cl.  &  F.  155;  Wright  v.  Tatham,  5  do.  670. 


00.     VEEDER:  A  CENTURY  OF  JUDICATURE  749 

diction  is  the  creation  of  the  nineteenth  century.  While  the 
main  stream  of  legal  business  flowed  through  the  Inns  of 
Court  and  Westminster  Hall,  a  close  body  of  advocates  and 
proctors,  in  the  quiet  backwaters  of  Doctors'  Commons, 
under  the  shadow  of  St.  Paul's,  placidly  pursued  their  voca- 
tion. In  their  cloister-like  seclusion  the  learned  doctors . 
caused  scarcely  a  ripple  on  the  surface  of  legal  affairs;  no 
report  was  issued  of  their  proceedings,  and  to  the  world  at 
large  they  were  unknown.  From  this  obscurity  the  ecclesias- 
tical and  admiralty  jurisdiction  was  rescued  by  the  genius 
of  Lord  Stowell. 

The  brothers  William  and  John  Scott,  who  were  destined 
in  after  life,  as  Lords  Stowell  and  Eldon,  to  make  such  last- 
ing impression  on  their  chosen  branches  of  English  juris- 
prudence, were  strikingly  dissimilar  in  mental  temperament. 
The  strength  of  intellect  which  in  the  case  of  Eldon  was 
applied  with  indefatigable  industry  to  the  confinement  within 
rigid  limits  of  the  doctrines  of  a  remedial  system,  was 
employed  by  Stowell  in  laying  the  foundation  of  the  law  of 
the  sea  in  accordance  with  the  principles  of  universal  justice. 
Lord  Stowell  was  a  man  of  the  most  scholarly  attainments  — 
the  friend  of  Johnson,  Burke  and  Reynolds,  and  a  keen  par- 
ticipant in  the  intellectual  movements  of  his  time.  The  cos- 
mopolitan sources  of  the  civil  law,  which  he  originally  studied 
as  part  of  a  liberal  education  —  its  philosophical,  literary 
and  historical  associations  —  led  him  to  adopt  it  as  a  voca- 
tion. The  choice  was  most  happy.  He  had  the  good  fortune 
to  live  in  an  age  peculiarly  calculated  to  exercise  and  exhibit 
his  great  faculties.  The  greatest  maritime  questions  that 
have  ever  presented  themselves  for  adjudication  arose  in  his 
time  out  of  those  vast  European  wars  in  which  England  ob- 
tained the  sovereignty  of  the  seas.  Most  of  these  questions 
were  of  first  impression,  and  could  be  determined  only  by  a 
cautious  process  of  deduction  from  fundamental  principles. 
The  genius  of  Stowell,  at  once  profound  and  acute,  vigorous 
and  expansive,  penetrated,  mastered  and  marshalled  all  the 
difficulties  of  these  complex  inquiries,  and  framed  that  com- 
prehensive chart  of  maritime  law  which  has  become  the  rule 
of  his  successors. 


750  V.     BENCH    AND    BAR 

His  first  judicial  service  was  as  judge  of  the  Consistory 
Court  of  London,  where  for  ten  years  he  delivered  discourses 
on  the  regulation  of  the  domestic  forum  which  are  exemplary 
alike  in  morals  and  in  taste.  In  this  jurisdiction,  involving 
the  most  sacred  rights  of  individuals  and  the  best  interests 
of  society,  his  benevolent  wisdom  is  indelibly  recorded.  Such 
cases  as  Dalyrymple  v.  Dalyrymple,  on  the  nature,  origin 
and  sanctity  of  marriage;  Evans  v.  Evans,  the  first  great 
case  on  cruelty;  Loveden  v.  Loveden;  Sullivan  v.  Sullivan, 
and  many  others  to  be  found  in  the  contemporary  reports 
of  Haggard  and  Phillimore,  are  rare  specimens  of  legal 
philosophy  and  practical  ethics.  In  the  case  of,  Evans  v. 
Evans,  for  instance,  he  benevolently  points  out  to  the  parties 
the  limits  of  his  powers : 

"  The  humanity  of  the  court  has  been  loudly  and  re- 
peatedly invoked.  Humanity  is  the  second  virtue  of  courts, 
but  undoubtedly  the  first  is  justice.  If  it  were  a  question  of 
humanity  simply,  and  of  humanity  which  confined  its  means 
merely  to  the  happiness  of  the  present  parties,  it  would  be  a 
question  easily  decided  upon  first  impressions.  Everybody 
must  feel  a  wish  to  separate  those  who  wish  to  live  separate 
from  each  other,  who  cannot  live  together  with  any  degree 
of  harmony  and,  consequently,  with  any  degree  of  happiness ; 
but  my  situation  does  not  allow  me  to  indulge  in  the  feelings, 
much  less  the  first  feelings,  of  an  individual.  The  law  has 
said  that  married  persons  shall  not  be  legally  separated  upon 
the  mere  disinclination  of  one  or  both  to  cohabit  together. 
The  disinclination  must  be  founded  upon  reasons  which  the 
law  approves,  and  it  is  my  duty  to  see  whether  these  reasons 
exist  in  the  present  case.  To  vindicate  the  policy  of  the 
law  is  no  necessary  part  of  the  office  of  a  judge;  but  if  it 
were,  it  would  not  be  difficult  to  show  that  the  law  in  this 
respect  has  acted  with  its  usual  wisdom  and  humanity,  with 
that  true  wisdom  and  that  real  humanity  that  regards  the 
general  interests  of  mankind.  For  though  in  particular 
cases  the  repugnance  of  the  law  to  dissolve  the  obligations 
of  matrimonial  cohabitation  may  operate  with  great  severity 
upon  individuals,  yet  it  must  be  carefully  remembered  that 
the  general  happiness  of  the  married  life  is  secured  by  its 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  751 

indissolubility.  When  people  understand  that  they  must  live 
together,  except  for  a  very  few  reasons  known  to  the  law, 
they  learn  to  soften  by  mutual  accommodation  that  yoke 
which  they  know  they  cannot  shake  off;  they  become  good 
husbands  and  good  wives  from  the  necessity  of  remaining 
husbands  and  wives,  for  necessity  is  a  powerful  master  in 
teaching  the  duties  which  it  imposes.  If  it  were  once  under- 
stood that  upon  mutual  disgust  married  persons  might  be 
legally  separated,  many  couples,  who  now  pass  through  the 
world  with  mutual  comfort,  with  attention  to  their  offspring 
and  to  the  moral  order  of  civil  society,  might  have  been  at 
this  moment  living  in  a  state  of  mutual  unkindness,  in  a  state 
of  estrangement  from  their  common  offspring,  and  in  a  state 
of  the  most  licentious  and  unreserved  immorality.  In  this 
case,  as  in  many  others,  the  happiness  of  some  individuals 
must  be  sacrificed  to  the  greater  and  more  general  good." 

But  the  highest  sphere  in  which  he  exercised  his  faculties 
was  the  Court  of  Admiralty,  where  for  a  period  of  thirty 
years  he  was  rather  a  law-giver  than  a  judge.  Except  a  few 
manuscript  notes,  and  occasional  references  to  tradition  and 
personal  memory,  there  were  no  precedents  for  his  guidance  in 
adjudicating  upon  the  novel  cases  arising  out  of  the  most 
important  war  in  English  history.  He  was  free  to  be  guided 
by  the  writers  on  Roman,  canon  and  international  law,  and 
by  the  historical  material  with  which  his  wide  reading  had 
made  him  familiar.  At  the  same  time  the  unequalled  variety 
of  cases  which  came  before  him  enabled  him  to  give  unity 
and  consistency  to  a  whole  department  of  law.  The  legal 
interruption  to  navigation  which  both  belligerent  parties 
may  create  against  neutrals,  the  rights  of  joint  captors, 
cases  of  unlawful  detention  and  seizure,  the  force  and  con- 
struction of  different  treaties,  the  existence  of  an  actual 
blockade,  the  condemnation  of  merchant  ships  for  resisting 
search,  questions  of  domicile,  the  extent  of  the  protection 
of  cartel,  the  extent  of  territorial  claims,  the  validity  of 
orders  in  council  —  these  are  among  the  subjects  adjudicated 
by  him  with  such  unerring  accuracy  that,  though  often 
appealed  from,  it  is  said  that  not  one  of  his  judgments  was 
reversed.  Upon  many  maritime  points  his  judgments  are 


752  V.     BENCH   AND    BAR 

still  the  only  law;  and  little  popular  as  they  were  at  the 
moment  among  Americans,  who  often  suffered  by  them,  they 
have  since  been  accepted  by  our  courts  as  authoritative. 
Fortified  by  a  store  of  knowledge  at  once  profound  and  ex- 
tensive, combining  all  the  materials  that  indefatigable  re- 
search, close  and  minute  observation  and  intense  study  could 
provide,  the  judgments  of  Lord  Stowell  in  international  law 
have  passed  into  precedents  equal,  if  not  superior,  to  those 
of  the  venerable  authors  of  the  science,  Puffendorf,  Grotius 
and  Vattel.  His  work,  like  theirs,  was  animated  by  the  spirit 
of  universal  justice.  "  I  trust,"  he  said  in  the  celebrated  case 
of  the  Swedish  Convoy,  1  C.  Rob.  349,  "  that  it  has  not  es- 
caped my  anxious  recollection  for  one  moment  what  it  is  that 
the  duty  of  my  station  calls  for  from  me ;  namely,  to  consider 
myself  stationed  here,  not  to  deliver  occasional  and  shifting 
opinions  to  serve  present  purposes  of  particular  national  in- 
terest, but  to  administer  with  indifference  that  justice  which 
the  law  of  nature  holds  out,  without  distinction,  to  independ- 
ent states,  some  happening  to  be  neutral,  and  some  to  be 
belligerent.  The  seat  of  judicial  authority  is,  indeed,  locally 
here  in  the  belligerent  country,  according  to  the  known  law 
and  practice  of  nations ;  but  the  law  itself  has  no  locality. 
It  is  the  duty  of  the  person  who  sits  here  to  determine  this 
question  exactly  as  he  would  determine  the  same  question  if 
sitting  in  Stockholm ;  to  assert  no  pretensions  on  the  part 
of  Great  Britain  which  he  would  not  allow  to  Sweden  in  the 
same  circumstances,  and  to  impose  no  duties  on  Sweden,  as 
a  neutral  country,  which  he  would  not  admit  to  belong  to 
Great  Britain  in  the  same  character.  If  therefore,  I  mistake 
the  law  in  this  matter,  I  mistake  that  which  I  consider,  and 
which  I  mean  should  be  considered,  as  the  universal  law  upon 
the  question." 

"  If  ever  the  praise  of  being  luminous  could  be  bestowed 
upon  human  compositions,"  says  Brougham,  "  it  was  upon 
his  judgments."  Aware  of  the  value  of  his  productions  he 
bestowed  extreme  care  in  their  preparation.  In  a  few  in- 
stances his  language  may  seem  somewhat  stilted;  the  atten- 
tion to  diction  may  occasionally  degenerate  into  purism ;  but 
the  symmetry  and  elegance  of  the  whole  confirm  Lord  Lynd- 


£0.     VEEDER:  A  CENTURY  OF  JUDICATURE  753 

hurst's  opinion  that  it  is  as  vain  to  praise  as  to  imitate 
him.  Probably  his  finest  performance,  from  all  points  of 
view,  is  his  luminous  exposition  in  the  case  of  the  Gratitudine, 
3  C.  Rob.  240,  of  the  power  of  the  master  of  a  vessel  to  hy- 
pothecate her  cargo.  But  it  is  little,  if  any  superior  to  the 
following:  The  Maria,  the  case  of  the  Swedish  Convoy,  1  C. 
Rob.  340;  the  case  of  the  Slave  Grace,  2  Hagg.  Adm.  94; 
the  Jane  and  Matilda,  1  Hagg.  Adm.  187 ;  the  Neptune,  1 
Hagg.  Adm.  227 ;  Le  Louis,  2  Dods.  Adm.  210.1 

Stowell  was  followed  in  succession  by  Sir  Christopher  Rob- 
inson (1828-33),  and  Sir  John  Nichol  (1833-38),  whose 
short  service  was  respectable,  but  not  particularly  distin- 
guished. The  next  judge  of  this  court  maintained  the  high 
standard  set  by  Stowell.  Lushington  (1838-67)  was  a  man 
of  high  character,  vast  learning  and  sound  judgment,  who, 
during  a  service  almost  equal  to  that  of  Stowell  in  duration, 
administered  the  varied  duties  of  his  court  with  such  accur- 
acy and  good  sense  that  his  judgment  was  seldom  appealed 
from  and  rarely  reversed.  "  All  who  ever  heard  one  of 
those  luminous  expositions  of  law,"  says  a  contemporory, 
"  must  remember  the  effect  produced  in  court  when,  often 
without  taking  time  to  consider  his  judgment,  Dr.  Lushing- 
ton would  deliver  one  of  those  masterpieces  of  judicial  wis- 
dom and  legal  learning  which  rank  him  among  the  first  of 
English  jurists."  With  maritime  law  in  particular  his  name 
is  permanently  associated.  The  ancient  jurisdiction  of  the 
Admiralty  was  largely  restored  by  various  statutes  during 
his  tenure,  and  it  was  finally  made  a  court  in  1861.  Then 
the  Crimean  war,  bringing  in  its  train  many  questions  of  the 

1  Following  is  a  fairly  comprehensive  list  of  his  most  important 
contributions  to  international  law:  The  Santa  Cruze,  1  C.  Rob.  50; 
Mercurius,  t'6.  80;  Frederick  Molke,  ib.  86;  Betsy,  ib.  93;  Flad  Oyen, 
ib.  135;  Hendrick  and  Maria,  ib.  146;  Columbia,  ib,  154;  Mentor,  t'6. 
179;  Jouge  Margaretha,  ib.  189;  Hoop,  ib.  196;  Two  Friends,  ib.  271; 
Vrow  Margaretha,  t'6.  336;  Maria,  ib.  340;  Immanuel,  2  C.  Rob.  186; 
Indian  Chief,  3  C.  Rob.  12;  Portland,  ib.  41;  Twee  Gebroeder,  ib.  162, 
336;  Inuan,  t'6.  167;  Atlas,  ib.  299;  Bremen  Flugge,  4  C.  Rob.  90; 
Anna  Catharina,  t'6.  107;  Fortuna,  t'6.  278;  Venus,  t'6.  355;  Phoenix, 
5  C.  Rob.  20;  Car.lotta,  ib.  54;  Boedes  Lust,  t'6.  233;  Anna,  t'6.  373; 
Orozambo,  6  C.  Rob.  430;  Atalanta,  6  t'6.  440;  Neptunus,  6  t'6.  403; 
Madison,  Edwards,  224;  Coylon,  1  Dods.  505;  Eliza  Ann,  t'6.  244; 
Fanny,  2  Dods.  210;  Le  Louis,  t'6.  210. 


754  V.     BENCH    AND    BAR 

rights  of  neutrals,  blockade  and  contraband  of  war,  enabled 
him  to  build  up  a  high  reputation  as  an  authority  on  inter- 
national law.  The  ecclesiastical  controversies  of  his  time, 
arising  out  of  the  ritualistic  movement  in  the  English 
Church,  were  also  determined  by  him  with  broad-minded 
liberality.1 

(d)   Courts  of  Appeal 

The  right  of  appeal  is  a  modern  conception.  Down  to  very 
recent  times  it  was  rigidly  withheld  save  in  a  strictly  limited 
class  of  cases;  and  even  in  those  cases  in  which  an  appeal 
was  allowed  the  appellate  jurisdiction  was  administered  on 
principles  which  were  anomalous  and  irrational  in  the  ex- 
treme. In  common  law  cases  only  matters  of  error  apparent 
on  the  record  were  reviewable,  and  no  appeal  lay  on  a  motion 
for  a  new  trial  or  to  enter  a  verdict  on  a  non-suit.  No 
error  lay  upon  a  special  case  framed  by  consent  without  a 
trial,  but  only  from  a  special  verdict  where  the  parties  had 
arranged  or  the  judge  had  directed  at  the  trial  a  special 
statement  of  the  facts ;  in  other  words,  the  expense  and 
delay  of  a  useless  trial  were  required  as  a  condition  of  appeal. 
And  even  where  appeal  was  possible  the  appellant  was  held 
to  the  strictest  observance  of  all  the  difficult  formalities 
involved  in  challenging  the  direction  of  a  judge  by  means  of 
a  bill  of  exceptions. 

The  Exchequer  Chamber,  the  intermediate  court  of  appeal 
in  common  law,  practically  dates  from  1832.  The  Court  of 
Appeal  in  Chancery  was  not  established  until  1851.  The 
courts  of  final  appeal,  the  House  of  Lords  and  the  Privy 
Council,  are  of  great  antiquity ;  but  prior  to  the  nineteenth 
century  their  judicial  functions  were  of  secondary  impor- 

'Some  of  Lushington's  conspicuous  cases  in  Admiralty  are:  The 
Milan,  Lush.  388;  Franciska,  2  Spink's  Adm.  and  Ecc.  1;  Banda  and 
Kirwee  Booty,  L.  R.,  1  A.  and  E.  109;  Batavia,  9  Moo.  P.  C.  286; 
Europe,  Br.  and  Lush.  89;  Pacific,  ib.  245;  Helen,  L.  R.,  1  A.  and  E.  1. 

In  matrimonial  affairs  see  Dysart  v.  Dysart,  3  Notes  of  Cases,  324; 
Williams  v.  Brown,  1  Curt.  53;  Braithwaite  v.  Hook,  8  Jur.  (N.  S.) 
1186. 

His  principal  ecclesiastical  cases  are:  Williams  v.  Bishop  of  Cape- 
town; Westerton  v.  Liddell;  Ditcher  v.  Denison;  Burder  v.  Heath; 
Bishop  of  Salisbury  v.  Williams;  Gorham  v.  Bishop  of  Exeter;  Long 
v.  Bishop  of  Capetown;  and  the  Colenso  case. 


00.     VEEDER:  A  CENTURY  OF  JUDICATURE  755 

tance.  The  appellate  jurisdiction  is  almost  entirely  a  crea- 
tion of  the  nineteenth  century.  This  late  development  may  be 
explained  in  part,  so  far  at  least  as  the  common  law  juris- 
diction is  concerned,  by  the  efficiency  of  the  trial  courts.  The 
three  great  common  law  courts  in  bane  administered  the 
system  then  in  force  as  well  as  any  court  could  administer  it. 
It  was  not  until  the  breakdown  of  the  common  law  courts 
in  bane  that  more  liberal  rights  of  appeal  became  necessary. 
Moreover,  the  House  could  at  all  times  avail  itself  of  the 
advice  of  the  common  law  judges.  This  advice,  it  is  true, 
they  were  not  bound  to  follow,  but,  in  fact,  it  was  seldom 
overridden.  In  chancery,  until  the  creation  of  the  Court  of 
Appeal  in  Chancery,  the  situation  was  not  so  satisfactory. 
The  chancellor  sat  alone  on  appeal  from  the  vice-chancellor 
and  from  the  master  of  the  rolls  (often  his  superiors  in  tech- 
nical learning)  ;  and  there  was  usually  small  satisfaction  in 
pursuing  an  appeal  to  the  House  of  Lords,  because,  owing 
to  the  defective  organization  of  that  tribunal,  there,  too,  the 
chancellor  usually  dominated.  The  advice  of  the  chancery 
judges  was  not  available,  because  the  House  had  no  author- 
ity to  summon  them  unless,  as  rarely  happened,  they  were 
also  peers. 

A  Court  of  Exchequer  Chamber  existed  from  the  earliest 
times,  both  as  a  court  of  error  and  a  court  of  debate.  As  a 
court  for  debate  it  consisted  of  the  assembled  judges,  pre- 
sided over  by  the  lord  chancellor,  where  matters  of  impor- 
tance and  difficulty  were  discussed  before  judgment  was  ren- 
dered in  the  court  below  (e.  g.  Calvin's  case).1  By  31  Edw. 
III.,  c.  12,  it  was  constituted  a  court  of  error  from  the  com- 
mon law  side  of  the  Exchequer,  and  in  it  sat  the  Lord  Chan- 
cellor, the  Lord  High  Treasurer  and  the  judges  of  the  other 
courts.  In  1585  another  court  was  created  to  take  error 

1  It  was  in  the  Exchequer  Chamber  that  the  judges  assembled  when 
they  were  consulted  by  the  king.  These  consultations  were  frequent 
in  early  times.  The  judges  were  consulted  by  Richard  II  as  to  his 
kingly  power;  by  Henry  VII  as  to  whether  the  devolution  of  the 
crown  upon  him  purged  him  of  his  attainder  by  Richard  III;  by 
Henry  VIII  as  to  whether  on  a  bill  of  attainder  a  person  need  be 
heard  in  his  own  defence.  The  practice  became  so  common  that  in 
1591  the  assembled  judges  volunteered  some  good  advice  on  the  subject 
of  illegal  commitments. 


756  V.     BENCH   AND    BAR 

from  the  King's  Bench.  It  was  composed  of  the  judges  of 
the  Common  Pleas  and  the  Exchequer.  Both  these  courts 
were  finally  merged  by  statute  (11  George  IV  and  1  William 
IV)  into  a  court  of  appeal  from  all  three  common  law  courts, 
appeals  from  one  court  being  heard  by  the  judges  of  the 
other  two.  This  continued  to  be  the  intermediate  court  of 
appeal  in  common  law  until  the  Judicature  Act.  As  thus 
constituted  it  was  at  times  a  most  powerful  court.  Its  prac- 
tical operation  was,  however,  somewhat  restricted.  Occupied 
with  the  labors  of  their  own  courts,  the  judges  were  irregular 
in  attendance.  And  the  general  satisfaction  given  by  the 
common  law  courts  in  bane  was  evidenced  by  a  limited  right 
of  appeal. 

During  the  first  half  of  the  life  of  the  court  its  most  active 
members  were  Tindal  and  Parke;  but  valuable  assistance 
was  rendered  by  Denman,  Patteson,  Coleridge  and  Alderson. 
During  the  second  period  the  active  participants  were  Willes, 
Erie,  Blackburn,  Bramwell,  Pollock,  Wightman,  Cockburn, 
Williams  and  Martin.  During  the  forty-five  years  of  the 
court's  existence  it  heard  only  about  eight  hundred  appeals, 
and  nearly  two-thirds  of  these  were  heard  during  the  last 
half  of  the  period.  The  Queen's  Bench  supplied  the  largest 
quota  of  these  appeals,  although  the  Exchequer  was  not  far 
behind.  Appeals  from  the  Common  Pleas  were  comparatively 
few  in  number.  Of  the  eight  hundred  judgments  reviewed 
by  the  court,  a  little  more  than  one-fourth  were  reversed  — 
somewhat  less  than  the  usual  proportion.  There  was  a  re- 
markable consensus  of  opinion  among  the  judges  in  this 
court,  the  number  of  cases  in  which  there  was  a  division  of 
opinion  being  less  than  fifty. 

The  importance  of  the  House  of  Lords  as  a  court  of  final 
review  in  civil  actions  is  a  matter  of  recent  development. 
After  the  break  up  of  the  Curia  Regis  and  the  establishment 
of  the  three  courts  of  common  law  there  remained  in  the 
sovereign  a  residuary  power  covering  cases  where  the  courts 
were  not  strong  enough  to  do  justice,  or  were  deficient  in 
rules  applicable  to  the  case  or  were  alleged  to  committed 
error.  In  time  the  King  in  Council  (at  first  the  Star 
Chamber,  and  latterly  the  Privy  Council)  became  the  tri- 


go.     VEEDER:  A  CENTURY  OF  JUDICATURE  757 

bunal  for  the  determination  of  cases  where,  from  the  great- 
ness of  the  offender,  *or  the  magnitude  of  the  issue,  the 
ordinary  courts  were  inadequate  to  do  justice.  The  King 
in  Chancery  (by  the  Lord  Chancellor)  acquired  exclusive 
jurisdiction  in  all  cases  where  the  rigor  of  the  common  law 
had  to  be  relaxed  by  supplemental  rules,  and  the  appellate 
jurisdiction  in  case  of  error  passed  into  the  hands  of  the 
House  of  Lords.  The  extent  of  the  jurisdiction  of  the 
House  was  long  a  matter  of  controversy.  Its  common  law 
jurisdiction  in  error,  which  was  settled  in  the  first  year  of 
Henry  VII,  was  decisively  vindicated  in  the  case  of  Ashby  v. 
White,  14.  St.  Tr.  695.  Its  appellate  jurisdiction  in  equity 
was  clearly  recognized  by  the  statute  of  27  Elizabeth,  c.  28, 
and  has  been  unquestioned  since  the  case  of  Shirley  v.  Fagg, 
6  St.  Tr.  1121.  In  early  times  the  House  claimed  and  occa- 
sionally exercised  an  original  jurisdiction  between  party  and 
party ;  but  this  claim  was  finally  abandoned  after  the  con- 
flict over  the  case  of  Skinner  v.  East  India  Co.,  6  St.  Tr. 
709,  in  1688.  Jurisdiction  over  Scotch  appeals  dates  from 
the  Act  of  Union  of  1707.  Irish  appeals  have  long  been 
heard  in  the  House.  In  1696,  and  again  in  1719,  the  Irish 
House  of  Lords  claimed  jurisdiction;  this  claim  was  allowed 
in  1783,  but  in  1800  it  was  finally  taken  away  by  the  Act 
of  Union. 

Yet,  even  late  in  the  eighteenth  century  the  House  was  only 
beginning  to  be  regarded  as  a  regular  court  of  justice.  Its 
composition  remained  uncertain  until  it  was  finally  settled 
by  statute  under  the  Judicature  Act.  The  original  con- 
ception doubtless  implied  the  judgment  of  the  whole  House 
assisted  by  the  advice  of  the  assembled  judges.  Of  course  the 
lord  chancellor  presided,  and  there  were  generally  eminent 
lawyers  among  the  peers  who  would  presumably  lead  in  the 
discussion.  The  reports  of  the  judicial  proceedings  of  the 
House  prior  to  the  nineteenth  century  are  so  meagre  that 
it  is  impossible  to  ascertain  the  character  of  their  discussions. 
The  earliest  report  of  their  judicial  proceedings  by  Shower 
(1694-1733) — a  brief  report  of  about  fifty  cases  confined 
mainly  to  a  statement  of  the  issues  and  the  actual  judgment 
of  the  House  —  was  considered  by  the  House  an  infringe- 


758  V.     BENCH   AND   BAR 

ment  of  its  privileges.  The  same  meagreness  characterizes 
other  reporters  of  the  eighteenth  century:  Colles  (1697- 
1713)  and  Brown  (continued  by  Tomlins,  1702-1800). 
Hall  states  that  in  his  day  judgment  was  regularly  given 
by  the  majority  of  voices.  In  1689  the  judgment  in  the  case 
of  Titus  Gates  was  affirmed  by  a  vote  of  thirty-five  to 
twenty-three,  in  opposition  to  the  unanimous  opinion  of  the 
assembled  judges.  The  judgment  of  the  Queen's  Bench  in 
the  celebrated  case  of  Ashby  v.  White,  1  Bro.  P.  C.  62,  in 
1703,  was  reversed  in  the  House  by  a  general  vote  of  fifty  to 
sixteen.1  As  late  as  1806  lay  peers  voted  in  the  case  of  Lord 
Hertford's  guardianship  of  Lord  Seymour's  daughter.  But 
the  theory  of  final  decision  by  a  combination  of  lay  and 
legal  minds  gradually  broke  down.  Lay  peers  were,  as  a 
rule,  little  disposed  to  attend  the  hearing  of  purely  private 
and  technical  cases;  and  they  soon  practically  lost  their 
right  to  sit  even  in  cases  of  quasi-political  and  general  public 
interest.  The  matter  came  to  an  issue  in  O'Connell's  case, 
11  Cl.  F.  155,  in  1844,  when  the  lay  peers,  in  deference  to 
the  Duke  of  Wellington,  finally  waived  their  right  to  vote. 
The  last  occasion  on  which  a  lay  peer  voted  was  the  case  of 
Bradlaugh  v.  Clarke,  8  App.  Cas.  354,  when  Lord  Denman, 
son  of  Lord  Chief  Justice  Denman,  voted.  Lord  Denman  had 
been  educated  for  the  bar,  but  he  did  not  come  within  the 
recognized  definition  of  a  "  law  lord,"  i.  e.,  one  who  had  held 
high  judicial  office;  yet  the  law  officers  of  the  government 
were  of  opinion  that  the  vote  was  lawful. 

The  other  component  part  pf  the  composition  of  the  an- 
cient tribunal,  the  assembled  judges,  has  also  practically 
disappeared.  The  right  of  the  House  of  Lords  to  summon 
the  judges  at  the  beginning  of  each  Parliament  to  be  present 
for  the  purpose  of  assisting  the  House,  when  required,  in 
the  determination  of  legal  questions,  is  of  great  antiquity. 
But,  although  the  judges  still  receive  this  summons,  they  no 
longer  attend  unless  specially  summoned  for  a  particular 

1  Some  of  the  other  cases  in  which  the  lay  peers  participated  were 
Douglas  v.  St.  John  (Lord's  Journal,  XXXII,  264),  in  1769;  Alexan- 
der v.  Montgomery  (Lord's  Journal,  XXXIII,  519),  in  1773;  Hill  v. 
St.  John  (Lord's  Journal,  XXXIV,  443),  in  1775;  Bishop  of  London 
t>.  Fytche  (Lord's  Journal,  XXXVI,  687),  in  1783. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  759 

purpose.  It  seems  to  have  been  a  common  practice  of  the 
House  during  the  eighteenth  century  to  consult  the  judges. 
During  the  first  quarter  of  the  nineteenth  century  Lord 
Chancellor  Eldon  and  Lord  Redesdale,  who  performed  most 
of  the  judicial  functions  of  the  House,  seldom  called  for 
their  views.  During  the  period  from  the  retirement  of 
Eldon  to  the  Judicature  Act  the  judges  were  frequently 
consulted,  and  almost  all  the  recorded  advisory  opinions  of 
the  judges  come  within  this  period.  Since  the  Judicature 
Act  the  judges  have  been  consulted  in  only  four  cases.1  The 
establishment  of  permanent  courts  of  appeal  has  obviated 
the  necessity  for  such  consultations.  In  practice  this  method 
of  consideration  was  subject  to  several  objections.  The 
judges  were  busy  in  their  own  courts  and  were  irregular  in 
responding.  Moreover,  the  manner  in  which  the  House  put 
questions  of  law,  without  regard  to  the  form  in  which  the 
questions  arose,  or  to  points  actually  raised,  often  made  it 
difficult  for  the  judges  to  give  a  satisfactory  answer.2 
Indeed,  in  the  matter  of  the  Westminster  Bank,  2  Cl.  &  F. 
192,  the  judges  declined  to  answer  on  the  ground  that  the 
question  was  "  proposed  in  terms  which  render  it  doubtful 
whether  it  is  a  question  confined  to  the  strict  legal  construc- 
tion of  existing  acts  of  Parliament."  However,  in  the  matter 

1  Mordaunt  v.  Moncrieff,  1  Pr.  &  Div.  App.  374,  upon  the  question 
whether  the  statutory  proceeding  for  dissolution  of  a  marriage  can  be 
instituted  or  proceeded  with  either  on  behalf  of  or  against  a  husband 
or  a  wife  who  prior  to  the  institution  of  such  proceedings  had  become 
incurably  insane;  Allison  v.  Bristol  Marine  Insurance  Co.,  1  App.  Cas. 
214;  Dalton  v.  Angus,  6  App.  Cas.  742,  as  to  the  right  of  lateral  sup- 
port for  buildings;  and  the  celebrated  trade  union  case  of  Allen  v. 
Flood,  (1898)  A.  C.  1. 

3  These  difficulties  were  clearly  denned  by  Justice  Maule  in 
M'Naghten's  case,  10  Cl.  &  F.  199,  where  he  hesitated  to  answer  the 
questions  propounded,  "first,  because  they  do  not  appear  to  rise  out 
of  and  are  not  put  with  reference  to  a  particular  case,  or  for  a  par- 
ticular purpose,  which  might  explain  or  limit  the  generality  of  their 
terms,  so  that  full  answers  ought  to  be  applicable  to  every  possible 
state  of  facts  not  inconsistent  with  those  assumed  in  the  questions; 
secondly,  because  I  have  heard  no  argument  at  your  lordships'  bar  or 
elsewhere  on  the  subject  of  these  questions,  the  want  of  which  I  feel 
the  more  the  greater  are  the  number  and  extent  of  questions  which 
might  be  raised  in  argument;  and,  thirdly,  from  a  fear,  of  which  I 
cannot  divest  myself,  that  as  these  questions  relate  to  matters  of 
criminal  law  of  great  importance  and  frequent  occurrence,  the  an- 
swers to  them  by  the  judges  may  embarrass  the  administration  of 
justice  when  they  are  cited  in  criminal  cases." 


760  V.     BENCH   AND   BAR 

of  the  Islington  Market  Bill,  3  Cl.  &  F.  512,  the  judges  gave 
their  opinion  on  a  bill  pending  in  Parliament ;  and  it  will  be 
remembered  that  the  judges  were  called  upon  for  their  opin- 
ions on  the  law  of  libel  when  Fox's  bill  on  that  subject  was 
pending  in  Parliament.  The  judges  are  called  upon  simply 
to  advise;  the  decision  rests  with  the  House  alone.  Lord 
Campbell  expressed  the  accepted  doctrine  in  Burdett  v. 
Spilsbury,  10  Cl.  &  F.  413 :  "  When  your  lordships  consult 
the  Queen's  judges  I  do  not  at  all  consider  that  you  are 
bound  by  the  opinion  of  the  majority,  or  even  by  their 
unanimous  opinion,  unless  you  are  perfectly  satisfied  with 
the  reasons  which  they  assign  for  the  opinion  they  give.'* 
Individual  lords  have  taken  a  different  view  of  their  duty, 
noticeably  Lord  Wynford.1  Still,  there  are  only  five  in- 
stances in  modern  times  in  which  the  House  has  rendered 
judgment  contrary  to  the  opinion  of  a  majority  of  the 
judges.2 

The  House  of  Lords  reports  from  1827  to  1900  contain 
one  hundred  and  twenty-five  cases  in  which  the  judges  have 
been  called  upon  for  advice.  Of  this  number  not  more  than 
a  score  are  in  any  sense  landmarks  in  legal  history.  Indeed, 
aside  from  the  relative  unimportance  of  most  of  these  cases, 
it  is  difficult  to  understand  upon  what  principle  the  House 
acted  in  determining  when  the  judges  should  be  assembled. 
For  in  twenty-four  cases  there  was  no  difference  of  opinion 
from  the  beginning  of  the  case  in  the  trial  court  to  its  final 
conclusion  in  the  House  of  Lords ;  and  in  fifty-eight  cases 
the  asembled  judges  were  unanimous  in  opinion.  The  form 
of  judgment  in  the  House  is  that  of  a  motion,  as  in  ordinary 
debates,  recorded  in  the  journal  of  the  House.  The  House, 
unlike  the  Privy  Council,3  holds  itself  bound  by  its  own 
judgments.  It  also  differs  from  the  Privy  Council  in  its 
privilege  of  summoning  the  judges. 

1Atty.  Gen.  v.  Winstanley,  5  Bligh   (N.  S.)   14.4. 

'O'Connell  ».  The  Queen,  11  Cl.  &  F.  232,  on  the  validity  of  a  gen- 
eral judgment  when  some  of  the  counts  in  an  indictment  are  bad; 
Jeffreys  v.  Boosey,  4  H.  L.  815,  on  copyright;  Unwin  t>.  Heath,  5  H.  L. 
recover  for  damage  necessarily  resulting  from  the  exercise  of  powers 
conferred  by  Parliament;  and  Allen  v.  Flood,  (1898)  A.  C.  1. 

'Gushing  v.  Dupuy,  5  App.  Cas.  409. 


00.     VEEDER:  A   CENTURY  OF  JUDICATURE  761 

The  reports  of  Dow  (1812-18)  and  of  Bligh  (1819-21) 
covering  the  long  chancellorship  of  Lord  Eldon,  indicate  the 
defects  of  the  House  as  an  appellate  tribunal.  During  this 
time  the  judicial  functions  of  the  House  were  performed  by 
Eldon,  assisted  from  time  to  time  by  Redesdale,  the  Irish 
chancellor.  So  far  as  their  attainments  in  equity  were  con- 
cerned these  two  eminent  judges  left  little  to  be  desired. 
But  Eldon  often  sat  alone.  Inasmuch  as  three  peers  were 
required  to  constitute  a  House,  it  often  became  necessary  to 
catch  a  bishop  or  two,  or  press  one  or  more  lay  peers  into 
service,  to  act  as  dummies,  and  then  the  lord  chancellor, 
gravely  assisted  by  these  two  mutes,  finally  disposed  of 
appeals  from  his  own  decisions.  As  the  Earl  of  Derby  said 
to  his  colleagues  in  1856,  they  were  upon  such  occasions 
"  like  the  lay  figures  which  are  introduced  in  a  painter's 
studio  for  the  purpose  of  adding  to  the  completeness  of  the 
judicial  tableau."  In  spite  of  its  manifest  absurdity  this 
system  was  viewed  with  veneration.  The  satire  of  Swift 
did  not  prevent  Lord  Hardwicke  from  saying  that  if  he 
went  wrong  in  Penn  v.  Baltimore  *  his  errors  would  be  cor- 
rected by  "  a  senate  equal  to  that  of  Rome  itself."  Yet  in 
every  case  that  went  to  the  House  during  his  chancellorship 
Hardwicke  himself  constituted  that  senate,  and  in  judicial 
solitude  he  affirmed  his  own  excellent  judgments.  And  we 
read  in  Blackstone  the  wondrous  tale  of  peers  "  bound  upon 
their  conscience  and  honor  (equal  to  other  men's  oaths)  to 
be  skilled  in  the  laws  of  their  country !  "  It  may  be  imagined 
that  such  a  tribunal  would  also  be  likely  to  discourage 
common  law  appeals,  particularly  in  view  of  Eldon's  asser- 
tion of  his  undoubted  right  to  override  the  judgment  of  the 
assembled  judges  of  the  common  law  courts. 

Upon  the  retirement  of  Eldon  the  judicial  functions  of 
the  House  were  largely  dominated  for  more  than  twenty 
years  by  Lord  Brougham.  During  the  period  from  the 
resignation  of  Eldon  in  1827  to  1850  there  were  only  thr"ee 
Chancellors,  —  Lyndhurst,  Brougham  and  Gotten  ham.  Lord 
Lyndhurst's  judicial  services  in  the  House  were  compara- 
tively unimportant.  His  experience  had  been  in  common  law ; 
*I  Ves.  Sr.,  446. 


762  V.    BENCH   AND   BAR 

moreover,  his  great  abilities  were  political  rather  than  judi- 
cial, and  when  in  office  his  attendance  on  judicial  business 
was  brief  and  irregular.  Lord  Cottenham,  on  the  other 
hand,  was  an  eminent  lawyer.  During  the  whole  period  of 
Brougham's  supremacy,  and  until  the  chancellorship  of  St. 
Leonards,  aside  from  occasional  assistance  from  Lord  Lang- 
dale,  the  Master  of  the  Rolls,  he  was  the  only  competent 
equity  judge  in  the  court.  The  Irish  chancellors,  Manners 
and  Plunkett,  sat  occasionally,  but  their  service  was  incon- 
spicuous. But  Cottenham,  a  pure  lawyer,  profoundly  versed 
within  the  narrow  sphere  of  equity,  but  knowing  little  be- 
sides, was  not  constituted  by  mental  temperament  to  take 
the  same  view  of  things  as  the  versatile  Brougham.  In 
common  law  authority,  on  the  other  hand,  the  court  was 
somewhat  better,  owing  to  the  elevation  to  the  peerage  of 
several  common  law  judges.  Best,  whose  service  as  a  legal 
peer,  under  the  title  of  Lord  Wynford,  was  second  only  to 
Brougham's  in  duration,  was  a  regular  attendant  on  judicial 
business  for  a  few  years  only ;  long  before  his  death  he  ceased 
to  sit.  Chief  Justice  Tenterden  sat  quite  regularly  from  his 
elevation  to  the  peerage  in  1827  to  his  death  in  1832.  His 
successor,  Denman,  was  raised  to  the  peerage  a  few  years 
later  expressly  to  assist  Brougham  in  appellate  work,  but 
owing  to  the  heavy  work  of  his  own  court  his  attendance  was 
irregular.  With  the  accession  of  Lord  Campbell  in  1841,  by 
virtue  of  his  appointment  to  the  Irish  chancellorship,  the 
House  enjoyed  the  services  of  a  thoroughly  competent  com- 
mon law  judge.  The  uncertain  composition  of  the  court  was, 
however,  a  serious  drawback.  A  litigant  had  no  assurance 
that  his  appeal  would  be  heard  by  a  judge  whose  learning 
and  experience  in  the  particular  subject  was  equal  to  that 
of  the  judge  from  whom  he  appealed.  If  Brougham's  tech- 
nical knowledge  had  been  equal  to  his  energy  and  assurance, 
the  situation  would  have  been  better;  but  it  must  be  said 
that  his  work,  except  in  Scotch  appeals,  is  not  of  a  high 
order.  During  the  ten  years  from  1850  to  1860  five  chan- 
cellors succeeded  one  another  in  rapid  succession :  Truro,  St. 
Leonards,  Cranworth,  Chelmsford  and  Campbell.  Truro  left 
appellate  work  to  Brougham,  and  St.  Leonards  and  Cran- 


00.     VEEDER:  A  CENTURY  OF  JUDICATURE  763 

worth,  who  frequently  sat  without  a  third  peer,  were  so 
notoriously  at  odds  that  judgments  were  constantly  affirmed 
on  appeal  in  consequence  of  a  dead-lock.  To  such  grounds 
of  complaint  may  be  added  the  intermittent  sittings  of  the 
court  and  consequent  delays,  its  extreme  disregard  of  the 
proceedings  and  engagements  of  the  other  courts,  its  abso- 
lute irresponsibility,  and  the  immense  expense  attendant  upon 
its  procedure.  Its  habit  of  transacting  legal  business 
through  the  legislative  form  of  general  debate  has  always 
been  a  serious  drawback.  It  always  conduces  to  the  dignity 
of  a  court,  and  to  the  authority  of  the  rules  which  it  lays 
down  for  future  guidance,  to  formulate  a  single  considered 
opinion  clearly  expressing  the  grounds  upon  which  the 
judgment  is  based.  Under  the  practice  of  the  House,  where 
each  judge  usually  gives  independent  expression  to  the  rea- 
sons upon  which  his  vote  is  based,  it  is  often  extremely  dif- 
ficult to  extract  the  ratio  decidendi. 

The  judicial  functions  of  the  Privy  Council  arise  out  of  its 
ancient  position  as  the  concilium  ordinarium  of  the  King, 
which  decided  cases  that  were  too  important  for  the  ordinary 
courts  but  not  of  sufficient  importance  for  the  House  of 
Lords.  From  this  source  sprang  the  Star  Chamber  and  the 
Court  of  Requests  as  off-shoots.  The  first  instance  of  the 
exercise  of  independent  appellate  jurisdiction  by  the  Privy 
Council  occurs  in  the  reign  of  Elizabeth,  when  it  took  juris- 
diction of  an  appeal  from  the  Channel  Islands.  Coke  calls 
the  Council  a  board,  not  a  court ;  and  Hale,  in  treating  sys- 
tematically of  all  the  existing  jurisdictions,  mentions  it  only 
in  connection  with  its  subservience  to  the  House  of  Lords. 
By  gradual  encroachment,  however,  the  Council  built  up  a 
formidable  jurisdiction.  In  the  reign  of  Charles  II  «it  ac- 
quired jurisdiction  of  ecclesiastical  and  maritime  appeals. 
Its  judicial  functions  were  placed  upon  a  modern  basis  by  the 
establishment  of  the  Judicial  Committee  of  the  Privy  Coun- 
cil (3  and  4,  Wm.  IV,  c.  41),  with  jurisdiction  principally 
over  appeals  from  the  colonies  and  in  ecclesiastical  and  ad- 
miralty cases.1 

1  Prior  to  this  time  the  only  Privy  Council  reports,  aside  from  occa- 
sional decisions  contained  in  the  early  House  of  Lords  reports,  were 


764  V.    BENCH   AND   BAR 

For  nearly  two  decades  the  labors  of  the  Judicial  Com- 
mittee were  borne  mainly  by  Parke  and  Brougham.  Some  of 
Brougham's  most  useful  services  were  rendered  in  this  court, 
where  his  encyclopedic  mind  and  liberal  views  are  displayed 
to  best  advantage.  These  two  judges  were  to  a  great  extent 
relieved  by  the  accession  in  1844  of  Kingsdown,  who  served 
in  this  court  with  great  distinction  for  more  than  twenty 
years.  Kingsdown  was  one  of  the  great  judges  of  his  time. 
Although  a  lawyer  of  vast  and  varied  learning,  his  grasp 
of  principle  led  him  to  deal  but  little  with  precedents.  In 
the  formulation  of  the  conclusions  of  the  court,  in  which  he 
bore  the  principal  part,  his  refined  taste  and  fastidious  use 
of  language  made  his  opinions  models  of  judicial  expression. 
From  1854  he  practically  took  charge  of  appeals  in  prize 
cases,  interpreting  the  law  of  blockade,  capture  and  prize 
with  marked  liberality  towards  freedom  of  trade.  His  opin- 
ions in  the  cases  of  The  Franciska,  The  Gerasimo,  and  Dyke 
v.  Wolford,  in  the  eighth  volume  of  the  State  Trials,  are 
good  specimens  of  his  style  and  method.1 

II.     From  the  Common  Law  Procedure  of  1852 
to  the  Judicature  Acts  of  1873-75 

A  well  defined  change  in  the  administration  of  English  law 
occurred  shortly  after  the  middle  of  the  century.  Years  of 

those  of  Acton  and  Knapp.  The  former  (1809-11)  is  made  up  mostly 
of  brief  opinions  in  prize  and  colonial  cases  by  Sir  William  Grant, 
who  was  during  the  early  part  of  the  century  the  dominant  influence 
in  the  court.  The  reports  of  the  court  under  its  modern  establish- 
ment begin  with  Knapp  (1839-36),  and  the  two  series  of  his  successor, 
Moore,  overlap  the  authorized  reports. 

1  The  following  are  among  his  ablest  opinions  in  various  branches 
of  the  law:  Schacht  v.  Otter,  9  Moo.  P.  C.  150;  Allen  v.  Maddock,  11 
do.  438;  Baltazzi  v.  Ryder,  12  do.  168;  Kirchner  v.  Venus,  12  do.  361; 
Secretary  of  State  of  India  v.  Kamachee  Boye  Sahaba,  13  do.  22; 
Bland  v.  Ross,  14  do.  210;  Ward  v.  McCorkillj  15  do.  133;  Attorney 
General  of  Bengal  v.  Ranee  Surnomoye  Dossee,  2  Moo.  P.  C.  (N.  s.)  22; 
Cleary  v.  McAndrew,  2  do.  216;  Brown  v.  Gugy,  2  do.  341;  Austen 
v.  Graham,  1  Spink  357;  The  Otsee,  2  do.  170;  The  Julia,  Lush.  224; 
The  Hamburgh,  Br.  and  Lush.  271.  His  opinions  in  ecclesiastical 
cases  were  likewise  characterized  by  breadth  of  mind.  Among  his 
most  prominent  cases  of  this, kind  are  Gorham  t?.  Bishop  of  Exeter, 
Liddell  v.  Weaterton,  Long  v.  Bishop  of  Capetown,  and  the  Essays 
and  Reviews  case. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  765 

agitation  against  the  anomalies  and  abuses  of  the  prevailing 
legal  system  culminated  about  that  time  in  a  series  of  practi- 
cal reforms  which  brought  the  administration  of  justice  into 
something  like  accord  with  the  world  of  affairs.  From  this 
time  forward  the  law  ceased  to  appear  to  be  designed  as  a 
restraint  upon  human  activity.  First  and  foremost  was  the 
Common  Law  Procedure  Act  of  1852.  This  great  measure  . 
and  its  immediate  successors  largely  transformed  the  ancient 
procedure.  Causes  of  action  by  and  against  the  same  parties 
were  permitted  to  be  joined,  and  several  equitable  defences 
were  allowed.  Special  demurrers  were  abolished,  together 
with  much  of  the  ancient  verbiage,  and  only  such  statements 
as  must  be  proved  were  essential  in  pleading.  In  1851  that 
final  absurdity  in  the  law  of  evidence  which  closed  the  mouth 
of  the  very  person  who  knew  most  about  the  matter  in  dispute 
was  abolished,  and  the  testimony  of  interested  witnesses  be- 
came simply  a  matter  of  credibility.  In  equity  a  series  of 
practical  reforms  re'moved  many  of  the  most  obvious  defects 
of  procedure;  additional  vice-chancellors  were  appointed  in 
1851  to  cope  with  the  burden  of  arrears,  and,  above  all,  in 
the  same  year,  a  permanent  court  of  appeal  in  chancery  was 
established.  The  confusion  and  absurdities  of  the  ecclesias- 
tical administration  of  probate  and  matrimonial  affairs  were 
finally  removed  in  1858  by  the  creation  of  an  independent 
court  for  probate  and  matrimonial  causes.  The  demand  for 
the  infusion  of  new  blood  into  the  court  of  final  appeal  was 
also  recognized.  The  Court  of  Crown  Cases  Reserved,  where 
points  of  criminal  law  could  be  reviewed,  dates  from  1848. 

But  institutions  are  of  little  utility  unless  they  are  ad- 
ministered by  men  who  are  in  sympathy  with  their  purpose 
and  spirit.  From  this  point  of  view  the  middle  of  the  century 
is  of  even  greater  significance  as  a  turning  point  in  legal 
history,  for  it  marks  the  advent  of  Willes,  Bramwell  and 
Blackburn  in  common  law,  and  of  Knight-Bruce,  Turner  and 
Page-Wood  in  equity.  Under  the  guidance  of  such  minds, 
in  which  technical  learning  and  common  sense  were  combined 
in  large  measure,  the  law  ceased  to  act  as  a  sort  of  surprise 
upon  mankind,  and  the  realization  of  rights  became  prac- 
ticable. A  few  years  later  the  larger  interests  of  the  law 


766  V.    BENCH   AND   BAR 

in  the  court  of  final  appeal  were  for  the  first  time  adequately 
administered  by  the  master  minds  of  Westbury  and  Cairns. 
This  period  has  been  aptly  termed  by  Sir  Frederick  Pollock 
the  classical  period  of  English  law. 

(a)  Common  Law  Courts 

The  central  figure  in  the  Court  of  Queen's  Bench  through- 
out this  period  was  Blackburn.  But  he  was  ably  assisted,  and 
in  some  respects  supplemented,  by  the  chief  justice  of  the 
court,  Sir  Alexander  Cockburn  (1859-80). 

The  large  measure  of  public  attention  which  Sir  Alexander 
Cockburn  commanded  during  his  lifetime  probably  led  to  an 
undue  estimate  of  the  permanent  value  of  his  judicial  services. 
Along  with  gifts  which  readily  attract  public  admiration,  he 
had  an  eye  for  effect  little  short  of  dramatic ;  and  his  dis- 
tinguished manner  was  calculated  to  impress  the  senses  even 
when  his  judgment  failed  to  satisfy  the  understanding.  Still, 
even  a  cursory  examination  of  his  work  reveals  singular 
ability.  Combining  in  an  ejninent  degree  logical  and  imag- 
inative qualities  of  mind,  he  was  not  only  a  consummate  ad- 
vocate, but  also  a  distinguished  judge.  Possibly  there  have 
been  more  eminent  advocates ;  certainly  there  have  been  more 
profound  judges;  but  rarely  a  man  who  united  to  such  an 
extent  the  attributes  of  each.  Like  Erskine  and  Brougham, 
with  whom  alone  he  shares  the  highest  honors  of  forensic 
advocacy  at  the  English  bar,  his  mind  was  more  capacious 
than  powerful,  clear  rather  than  profound.  In  judgment 
he  surpassed  both,  and  the  acute  sensibility  which  was  his 
most  prominent  characteristic,  manifested  itself  in  a  range 
of  imagination  to  which  neither  of  his  great  rivals  could 
make  any  pretension.  Indeed,  such  was  the  range  of  his 
imagination  that,  had  it  been  balanced  by  equal  strength  in 
reasoning  faculty,  his  mental  equipment  would  have  been 
unsurpassed.  But  the  acute  sensibility  that  characterized 
his  temperament  was  itself  of  no  inconsiderable  aid  in  the 
successful  discharge  of  his  judicial  functions.  The  law  is 
not  merely  a  system  of  rules,  nor  is  its  administration  simply 
the  application  of  these  rules  by  rigid  logical  deduction. 


00.     VEEDER:  A  CENTURY  OF  JUDICATURE  767 

Since  the  law  is  designed  to  serve  the  needs  of  mankind,  its 
efficient  administration  requires  a  clear  and  just  appreciation 
of  the  facts  to  which  it  is  to  be  applied.  The  successful  in- 
vestigation of  facts  is  therefore  an  essential  preliminary  to, 
and  a  most  important  element  of,  a  just  determination.  And 
a  learned  lawyer  who  is  wanting  in  imagination  often  mis- 
apprehends the  bearing  upon  the  facts  of  rules  of  which  he 
has  no  full  and  pregnant,  but  only  a  dry  and  technical, 
knowledge.  Of  course,  the  value  of  such  qualities  depends 
upon  the  extent  to  which  they  coexist  with  a  logical  basis 
in  the  understanding;  but  in  the  perfect  coordination  of 
these  diverse  qualities  resides  the  highest  judicial  capacity. 
In  Cockburn's  equipment  imaginative  qualities  certainly  pre- 
dominated. His  mind  was  perhaps  too  quick  and  susceptible 
to  admit  of  the  tenacity  essential  to  the  highest  excellence  in 
the  formal  exposition  of  legal  doctrines.  Hence  he  was 
strongest  in  dealing  with  facts.  At  nisi  prius  his  grace  of 
manner,  his  knowledge  of  the  world,  his  refined  and  eloquent 
diction,  and  his  lucid  and  orderly  intellect,  combined  to  make 
him  an  ideal  judge.  His  most  conspicuous  effort  in  this 
sphere  was  his  charge  to  the  jury  in  the  memorable  Tich- 
borne  case,  in  the  course  of  which  he  formulated  with  elo- 
quence and  force  the  true  functions  of  judges  and  juries: 

"  In  my  opinion  a  judge  does  not  discharge  his  duty  who 
contents  himself  with  being  a  mere  recipient  of  evidence, 
which  he  is  afterwards  to  reproduce  to  the  jury  without 
pointing  out  the  facts  and  inferences  to  which  they  naturally 
and  legitimately  give  rise.  It  is  the  business  of  the  judge 
so  to  adjust  the  scales  of  the  balance  that  they  shall  hang 
evenly.  But  it  is  his  duty  to  see  that  the  facts  as  they  arise 
are  placed  in  the  one  scale  or  the  other  according  as  they 
belong  to  one  or  the  other.  It  is  his  business  to  take  care 
that  the  inferences  which  properly  arise  from  the  facts  are 
submitted  to  the  consideration  of  the  jury,  with  the  happy 
consciousness  that  if  he  go  wrong  there  is  the  judgment  of 
twelve  men  having  experience  in  the  every  day  concerns  of 
life  to  set  right  anything  in  respect  of  which  he  may  have 
erred.  ...  In  the  conviction  of  the  innocent,  and  also  in 
the  escape  of  the  guilty,  lies,  as  the  old  saying  is,  the  con- 


768  F.     BENCH   AND   BAR 

damnation  of  the  judge.  .  .  .  You  have  been  asked,  gentle- 
men, to  give  the  defendant  the  benefit  of  any  doubts  you  may 
entertain.  Most  assuredly  it  is  your  duty  to  do  so.  It  is 
the  business  of  the  prosecution  to  bring  home  guilt  to  the 
accused  to  the  satisfaction  of  the  jury.  But  the  doubt  of 
which  the  accused  is  entitled  to  the  benefit  must  be  the  doubt 
that  a  rational,  that  a  sensible  man  may  fairly  entertain,  not 
the  doubt  of  a  vacillating  mind  that  has  not  the  moral  courage 
to  decide,  but  shelters  itself  in  a  vain  and  idle  scepticism. 
...  I  should  be  the  last  man  to  suggest  to  any  individual 
member  of  the  jury  that  if  he  entertains  conscientious,  fixed 
convictions,  although  he  may  stand  alone  against  his  eleven 
fellow  jurors,  he  should  give  up  the  profound  and  unalterable 
convictions  of  his  own  mind.  .  .  .  But  then  we  must  recollect 
that  he  has  a  duty  to  perform,  and  that  it  is  this.  He  is  bound 
to  give  the  case  every  possible  consideration  before  he  finally 
determines  upon  the  course  he  will  pursue,  and  if  a  man  finds 
himself  differing  from  the  rest  of  his  fellows  with  whom  he 
is  associated  in  the  great  and  solemn  function  of  the  adminis- 
tration of  justice,  he  should  start  with  the  fair  presumption 
that  the  one  individual  is  more  likely  to  be  wrong  than  the 
eleven  from  whom  he  differs.  He  should  bear  in  mind  that  the 
great  purpose  of  trial  by  jury  is  to  obtain  unanimity  and 
put  an  end  to  further  litigation ;  he  should  address  himself, 
and  in  all  diffidence  in  his  own  judgment,  to  the  task  he  has 
to  perform,  and  carefully  consider  all  the  reasons  and  argu- 
ments which  the  rest  of  the  body  are  able  to  put  forward  for 
the  judgment  they  are  ready  to  pronounce,  and  he  should 
let  no  self-conceit,  no  notion  of  being  superior  to  the  rest 
in  intelligence,  no  vain  presumption  of  superiority  on  his 
part,  stand  in  the  way.  .  .  .  That  is  the  duty  which  the 
juryman  owes  to  the  administration  of  justice  and  the  opin- 
ion of  his  fellows,  and  therefore  I  must  protest  against  the 
attempt  to  encourage  a  single  juryman,  or  one  or  two  among 
a  body  of  twelve,  to  stand  out  resolutely,  positively,  and 
with  fixed  determination  and  purpose,  against  the  judgment 
and  opinion  of  the  majority.  .  .  .  There  is  but  one  course 
to  follow  in  the  discharge  of  great  public  duties.  No  man 
should  be  insensible  to  public  opinion  who  has  to  discharge 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  769 

a  public  trust.  .  .  .  But  there  is  a  consideration  far  higher 
than  that.  It  is  the  satisfaction  of  your  own  internal  sense 
of  duty,  the  satisfaction  of  your  own  conscience,  the  knowl- 
edge that  you  are  following  the  promptings  of  that  still, 
small  voice  which  never,  if  we  listen  honestly  to  its  dictates, 
misleads  or  deceives  —  that  still,  small  voice  whose  approval 
upholds  us  even  though  men  should  condemn  us,  and  whose 
approval  is  far  more  precious  than  the  honor  or  applause 
we  may  derive,  no  matter  from  what  source."  1 

By  way  of  disparagement,  it  was  said  that  Cockburn  ac- 
quired his  knowledge  of  legal  principles  while  sitting  on  the 
bench  beside  Blackburn.  Beyond  doubt  Blackburn's  vigor- 
ous intellect  was  the  ruling  power  in  the  Queen's  Bench 
throughout  Cockburn's  service;  but,  with  his  great  natural 
acquisitive  powers  and  assidtious  application,  Cockburn  cer- 
tainly acquired  a  firm  grasp  of  the  fundamental  principles 
of  the  law.  If  the  scope  and  activity  of  his  intelligence,  and 
the  variety  of  his  pursuits,  to  some  extent  impaired  the  fulness 
and  accuracy  of  his  knowledge  of  its  details,  his  keen  insight 
and  knowledge  of  the  world,  acquired  through  cultivation, 
travel  and  extensive  intercourse  with  all  classes  of  men,  fre- 
quently saved  him  from  pitfalls  into  which  less  worldly  men 
would  have  fallen..  On  the  whole,  his  influence  has  perhaps 
been  felt  more  in  the  impulse  and  direction  which  he  gave  to 
certain  topics  than  in  any  direct  contribution  to  its  formal 
contents. 

The  doctrine  of  partial  insanity  may  be  directly  traced 
to  his  efforts.  This  doctrine  was  formulated  by  him  in  de- 
fending M'Naghten,  in  1843,  and  the  advisory  opinions  ren- 
dered by  the  judges  to  the  House  of  Lords  in  a  subsequent 
investigation  of  the  case  lent  support  to  his  theory.  In  the 
subsequent  case  of  Banks  v.  Goodfellow,  5  Q.  B.  549,  he  ap- 
plied the  doctrine  to  testamentary  cases  in  terms  which  have 
since  been  generally  accepted.  His  reasoning  is  that  what- 
ever may  be  the  psychological  theory  as  to  the  indivisibility 

1  Among  other  causes  cttebres  in  which  he  presided  were  the  Matlock 
will  case;  the  Wainwright  murder  case,  a  leading  case  on  circumstan- 
tial evidence;  the  convent  case  of  Saurin  v.  Starr,  an  action  by  a  sister 
of  mercy  against  her  mother  superior  for  assault,  and  Reg.  v.  Gurney,  a 
famous  case  of  fraud  conspiracy. 


770  V.     BENCH    AND    BAR 

of  the  mind,  every  one  must  be  conscious  that  the  faculties 
and  functions  of  the  mind  are  various  and  distinct,  as  are  the 
powers  and  functions  of  our  physical  organization.  The 
pathology  of  mental  disease  shows  that  while,  on  the  one 
hand,  all  the  faculties,  moral  and  intellectual,  may  be  involved 
in  one  common  ruin,  as  in  the  case  of  the  raving  maniac,  in 
other  instances  one  or  more  only  of  these  faculties  may  be 
disordered,  leaving  the  rest  undisturbed  —  that  while  the 
mind  may  be  overpowered  by  delusions  which  utterly  de- 
moralize it,  there  often  are,  on  the  other  hand,  delusions 
which,  though  the  offspring  of  mental  disease,  and  so  far 
constituting  insanity,  yet  leave  the  individual  in  all  other 
respects  rational  and  capable  of  transacting  the  ordinary 
affairs  of  life. 

On  the  law  of  libel  —  particularly  with  respect  to  the 
public  press  —  Cockburn  made  a  durable  impression.  In  the 
leading  case  of  Wason  v.  Walter,  4  Q.  B.  73,  he  established 
the  reservation  in  favor  of  privileged  publications  on  its  true 
foundation ;  i.  e.  that  the  advantage  of  publicity  to  the  com- 
munity at  large  outweighs  any  private  injury  that  may  be 
done.  He  also  gave  a  strong  impulse  to  the  prevailing  rule 
with  respect  to  the  limits  of  public  criticism.  His  general 
principle  was  perfect  freedom  of  discussion  of  public  men, 
stopping  short,  however,  of  attacks  on  private  character 
and  reckless  imputation  of  motives.  When,  therefore,  a 
writer  goes  beyond  the  limits  of  fair  criticism  in  making  im- 
putations on  private  character,  it  is  no  defence  that  he  be- 
lieved his  statements  to  be  true.  "  It  is  said  that  it  is  for 
the  interests  of  society  that  the  public  conduct  of  men  should 
be  criticised  without  any  other  limits  than  that  the  writer 
should  have  an  honest  belief  that  what  he  writes  is  true.  But 
it  seems  to  me  that  the  public  have  an  equal  interest  in  the 
maintenance  of  the  public  character  of  public  men ;  and 
public  affairs  could  not  be  conducted  by  men  of  honor  with 
a  view  to  the  welfare  of  the  country  if  we  were  to  sanction 
attacks  upon  them  destructive  of  their  honor  and  character, 
and  made  without  any  foundation.  Where  the  public  con- 
duct of  a  public  man  is  open  to  animadversion,  and  the  writer 
who  is  commenting  upon  it  makes  imputations  upon  his 


80.     VEEDER:  A   CENTURY  OF  JUDICATURE    771 

motives  which  arise  fairly  and  legitimately  out  of  his  con- 
duct, so  that  the  jury  shall  say  that  the  criticism  was  not 
only  honest  but  also  well  founded,  an  action  is  not  maintain- 
able. But  it  is  not  because  a  public  writer  fancies  that  the 
conduct  of  a  public  man  is  open  to  the  suspicion  of  dis- 
honesty, he  is  therefore  justified  in  assailing  his  character 
as  dishonest."  l 

Lord  Campbell  records  in  his  diary  in  June,  1856 :  "  Hav- 
ing occasion  for  a  new  judge  to  succeed  Erie,  made  Chief 
Justice  of  the  Common  Pleas,  I  appointed  Blackburn,  the 
fittest  man  in  Westminster  Hall,  although  wearing  a  stuff 
gown,  whereas  several  Whig  Queen's  Counsel,  M.  P.'s,  were 

1  Campbell  v.  Spottiswood,  3,  B.  &  S.  769.  See  also  Hunter  v. 
Sharp,  4  F.  &  F.  983,  as  to  the  protection  afforded  with  respect  to 
statements  of  motive. 

One  of  his  most  valuable  judgments  is  his  exhaustive  examination 
of  the  nature  and  limits  of  martial  law  in  his  charge  to  the  grand 
jury  charged  with  the  investigation  of  the  conduct  of  Colonel  Nelson 
and  Lieutenant  Brand  in  the  suppression  of  the  Jamaica  insurrection 
in  1865.  In  the  "  Franconia "  case,  2  Ex.  D.  63,  he  delivered  a  most 
elaborate  opinion  on  the  jurisdiction  over  the  sea  within  the  three- 
mile  zone. 

Among  his  valuable  contributions  to  the  criminal  law  are  Reg.  v. 
Hicklin,  3  Q.  B.  360,  as  to  the  bearing  of  motive  in  criminal  acts; 
Reg.  v.  Charlesworth,  9  Cox  Cr.  Cas.  45,  and  Reg.  v.  Winsor,  10  Cox 
Cr.  Cas.  3C3,  as  to  whether  in  criminal  cases  a  mistrial  is  a  bar;  Reg. 
v.  Rowton,  10  Cox  Cr.  Cas.  28,  on  the  testimony  admissible  to  prove 
good  character;  Reg.  v.  Garden,  14  Cox  Cr.  Cas.  363,  as  to  whether 
mandamus  will  lie  to  compel  a  magistrate  to  receive  evidence. 

The  following  commercial  cases  will  repay  examination:  Goodwin 
v.  Robarts,  10  Ex.  337,  on  the  negotiability  of  foreign  script;  Sacra- 
manga  v.  Stamp,  5  C.  P.  D.  295,  as  to  whether  ship  owners  are  liable 
for  the  loss  of  a  cargo  in  a  deviation  for  the  purpose  of  saving  life* 
Nugent  v.  Smith,  1  C.  P.  D.  423,  on  the  liability  of  carriers  by  sea ; 
Twycross  v.  Grant,  26  P.  D.  469,  a  case  of  fraudulent  prospectus ;  Rou- 
quette  v.  Overman,  10  Q.  B.  524,  as  to  the  bearing  of  the  lex  loci  of 
performance  on  bills  of  exchange ;  Bates  v.  Hewitt,  2  Q.  B.  595,  upon 
the  obligation  to  disclose  material  facts  in  contracts  of  insurance,  and 
Frost  v.  Knight,  7  Ex.  Ill,  where  the  doctrine  of  Hochster  v.  De  la 
Tour,  2  E.  &  B.  678,  was  applied  to  a  contract  in  which  performance 
depended  upon  a  contingency.  It  may  be  pointed  out  in  this  connec- 
tion, that  the  significance  of  Cockburn's  important  opinion  in  Goodwin 
v.  Robarts,  mentioned  above,  lies  in  its  repudiation  of  Blackburn's 
conservative  view  of  trade  customs  as  expressed  in  Crouch  v.  Credit 
Foncier,  8  Q.  B.  376. 

See,  also,  his  learned  opinion  in  Phillips  v.  Eyre,  4  Q.  B.  225,  another 
case  arising  out  of  the  Jamaica  insurrection;  his  elaborate  discussion 
of  the  nature  and  effect  of  foreign  judgments  in  Castrique  v.  Imrie, 
30  L.  J.,  C.  P.  177;  and  the  celebrated  ecclesiastical  controversy,  Martin 
v.  Mackonochie,  3  Q.  B.  D.  730;  4  Q.  B.  D.  697;  6  App.  Cas.  424,  in 
which  the  writ  of  prohibition  issued  by  Cockburn  was  set  aside  on  appeal. 


772  V.    BENCH   AND   BAR 

considering  which  of  them  would  be  the  man,  not  dreaming 
that  they  could  all  be  passed  over.  They  got  me  well  abused 
in  the  Times  and  other  newspapers.  .  .  .  This  was  the  sort 
of  thing :  '  Everybody  has  been  going  about  town  asking 
his  neighbour,  who  is  Mr.  Colin  Blackburn?  The  very 
ushers  in  the  courts  shake  their  heads  and  tell  you  they  never 
heard  of  such  a  party.'  '  His  legal  claims  to  this  appoint- 
ment stand  at  a  minimum.'  '  The  only  reason  which  can  be 
assigned  for  this  strange  freak  of  the  Chancellor  is  that  the 
new  puisne  judge  is  a  Scotchman.' '  But  Lyndhurst  came 
to  his  rescue  in  the  House  of  Lords.  "  I  have  been  asked," 
he  said,  "  who  is  Mr.  Blackburn,  and  a  journal  which  takes 
us  all  to  task  by  turns  has  asked  somewhat  indignantly,  *  Who 
is  Mr.  Blackburn  ?  '  I  take  leave  to  answer  that  he  is  a  very 
learned  person,  a  very  sound  lawyer,  an  admirable  arguer  of 
a  law  case  and  eminently  fitted  for  a  seat  on  the  bench." 
Never  was  a  prediction  more  completely  realized.  This  un- 
known Scotch  lawyer  proved  himself  to  be  the  greatest  com- 
mon law  judge  of  the  century,  and  was  destined  in  his  long 
career  of  nearly  thirty  years  in  the  Queen's  Bench,  the  Ex- 
chequer Chamber  and  the  House  of  Lords,  to  make  a  larger 
volume  of  substantial  contributions  to  English  law  than  any 
other  judge  in  English  history  save  only  Mansfield.  From 
the  outset  he  easily  held  his  own  with  such  judges  as  Cock- 
burn,  Wightman,  Lush,  Archibald  and  Field,  and  it  was  not 
long  before  he  was  recognized  as  the  corner  stone  of  the 
Queen's  Bench.  In  commercial  law,  of  which  he  was  com- 
pletely master,  he  alone  saved  his  court  from  being  overshad- 
owed by  the  authority  of  the  Common  Pleas  under  Willes.  In 
real  property  law,  also,  he  had  no  superior  among  his 
associates ;  and  he  was  such  a  good  all-round  lawyer  that  even 
in  those  branches  where  a  colleague  was  something  of  a  spe- 
cialist, he  easily  took  second  place.  An  acute  observer  has 
thus  described  the  Court  of  Queen's  Bench  in  action  during 
Blackburn's  supremacy :  "  So  keen  and  alert  was  his  mind,  so 
full  of  the  rapture  of  the  strife,  that  in  almost  all  cases  it  was 
he  who  in  the  point  to  point  race  made  the  running  or  picked 
up  the  scent.  On  such  occasions  all  the  papers  and  authori- 
ties in  a  case  seemed  to  be  drawn  by  a  sort  of  magnetic 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  773 

attraction  to  his  desk.  And  behind  them  he  would  sit  with 
his  wig  on  the  back  of  his  head,  plunging  his  short-sighted 
eyes  into  one  and  another,  firing  off  questions  in  quick  succes- 
sion at  counsel  on  both  sides,  raising  difficulties  and  objec- 
tions, and  at  last,  when  the  point  was  cleared,  handing  the 
conclusive  document  to  the  Lord  Chief  Justice,  who,  mean- 
while, had  often  been  leaning  back  in  his  chair  in  amused 
enjoyment  of  the  scene,  but,  always  ready  to  intervene  at  the 
psychological  moment  and  bear  off  the  honors  of  a  point,  or 
to  enforce  the  conclusion  in  a  judgment  of  inimitable  force 
and  diction." 

It  is  obvious  that  the  law  reports  furnish  no  adequate 
memorial  of  the  services  of  such  a  judge.  Yet  the  volume  of 
his  work  is  immense.  His  name  appears  in  almost  every  case, 
and,  although  his  opinions  are  often  admirably  terse,  he 
hardly  ever  simply  concurred ;  on  the  other  hand,  he  delivered 
the  judgment  of  the  court  oftener  than  any  of  the  puisnes. 
When  he  does  undertake  to  formulate  his  views  he  gives  fully 
the  process  by  which  he  reaches  his  conclusion.  While  not  so 
profuse  in  the  use  of  authorities  as  Willes,  his  review  of  the 
cases  is  always  thorough  and  interesting.  He  had  no  graces 
of  style  or  flashes  of  imagination,  but  every  conclusion  is 
worked  out  with  the  hard  headed  and  closely  knit  logic  of 
his  race.  With  a  mind  as  vigorous  as  Jessel's,  and  a  humor, 
when  called  for,  as  caustic,  he  was  always  conscientiously 
scrupulous  in  the  discharge  of  his  judicial  functions.  Turner 
v.  Walker,  1  Q.  B.  118,  illustrates  his  candor. 

It  is  impracticable  to  give  within  brief  limits  more  than 
an  illustration  of  Blackburn's  vast  contributions  to  the  law. 
In  mere  volume  his  work  was  equalled  during  the  century 
by  Parke  alone.  There  are  more  than  six  hundred  cases  in 
the  reports  in  which  he  formulated  in  detail  the  reasons  which 
influenced  his  judgment,  and  in  more  than  one-quarter  of 
these  cases  he  delivered  the  unanimous  opinion  of  the  court. 
The  list l  of  cases  cited  in'the  note  will  give  some  indication 

'In  the  Court  of  Queen's  Bench:  Campbell  v.  Spottiswoode,  32  L.  J., 
Q.  B.  185;  Lloyd  v.  Guibert.  33-241,  etc.;  Burges  t>.  Wickham,  33-17; 
Coe  v.  Wise,  33-281;  MoodyV  Corbett,  34-166;  Maurpoice  v.  Westley, 
34-229;  Wilson  v.  Bank  of  Victoria,  36-89;  Fleet  v.  Perrins,  37-223; 
Allen  v.  Graves,  39-157;  Godard  v.  Gray,  40-62;  lonides  v.  Pacific  Ins. 


774  V.     BENCH   AND    BAR 

of  his  work  as  a  justice  of  the  Court  of  Queen's  Bench,  as  a 
member  of  the  Court  of  Exchequer  Chamber,  as  an  adviser 
to  the  House  of  Lords,  and  as  a  member  of  the  court  of  final 
appeal. 

As  a  general  illustration  of  his  method  of  exhausting  a 
subject,  both  from  principle  and  from  precedent,  reference 
may  be  made  to  his  examination,  in  the  case  of  Capital  and 
Counties  Bank  v.  Henty,  7  App.  Cas.  741,  of  the  modern 
law  of  libel.  The  value  of  the  details  of  his  elaborate  argu- 
ments may  be  observed  in  his  admirable  statement  in  Cole  v. 
North  Western  Bank,  10  C.  P.  362,  of  the  difficulties  which 
the  common  law  put  in  the  way  of  the  customs  of  merchants. 
Lord  Blackburn  contributed  a  leading  case  to  the  reports, 
not  after  his  death,  like  Lord  St.  Leonards,  but  while  serving 

Co.,  41-33;  Lloyd  v.  Spence,  41-93;  Newby  v.  Van  Oppen,  41-188; 
Armstrong  v.  Stokes,  41-253;  Crouch  v.  Credit  Foncier  Co.,  42-183; 
Searle  v.  Laverick,  43-43;  Queen  v.  Castro,  43-105;  Taylor  v.  Green- 
halg,  43-168;  lonides  v.  Fender,  43-227;  Bettini  v.  Gye,  45-209;  Mac- 
kenzie v.  Whitworth,  45-233;  Lindsay  v.  Cundy,  45-381;  Queen  v.  Col- 
lins, 45-413;  Shand  v.  Bowes,  45-507. 

In  the  Court  of  Exchequer  Chamber:  Santos  v.  Illidge,  29  L.  J.,  C.  P. 
348;  Fitzjohn  v.  Mackinder,  30-257;  Jones  v.  Tapling,  31-342;  Blades  v. 
Higgs,  32-182  ;Xenos  v.  Wickham,  33-13;  Lee  v.  Jones,  34-131 ;  Appleby 
v.  Meyers,  36-331;  Holland  v.  Hodgson,  41-146;  Brunsmead  v.  Harrison, 
41-190;  Clarke  v.  Wright,  30  L.  J.,  Ex.  113;  Fletcher  v.  Rylands,  35-154; 
Duke  of  Buccleuch  v.  Met.  Bd.  of  Wks.,  39-130;  Riche  v.  Ashbury  Co., 
43-177;  Thorn  v.  Mayor  of  London,  44-62. 

Advisory  opinions  in  House  of  Lords:  Cox  v.  Hickman,  8  H.  L.  C. 
277;  Betts  v.  Menzies,  10-131;  Peek  v.  No.  Staffordshire  Ry.,  10-473; 
Harwood  v.  Gt.  Northern  Ry.,  11-666;  Mersey  Docks  v.  Gibbs,  11-686; 
1  E.  &  I.  App.  102;  Rankin  v.  Potter,  6-97;  Hammersmith  Ry.  v. 
Brand,  4-236;  Great  Western  Ry.  v.  Sutton,  4-236;  Castrique  v.  Ir- 
vine, 4-425 ;  Hollins  v.  Fowler,  7-757. 

In  the  House  of  Lords:  Direct  U.S.  Cable  Co.  v.  Anglo-Am.  Tel. 
Co.,  2  App.  Cas.  410;  Bowes  v.  Shand,  2-455;  McKinnon  v.  Armstrong, 
2-531;  Brogden  v.  Met.  Ry.  Co.,  2-666;  Rossiter  v.  Miller,  3-115;  Orr 
Ewing  v.  Registrar,  4-479;  Kendall  v.  Hamilton,  4-541;  Fairlee  v. 
Boosey,  4-726;  Sturla  v.  Freccia,  5-639;  Peorks  v.  Moseley,  5-714; 
Met.  Asylum  Dist.  v.  Hill,  6-202;  Jennings  v.  Jordan,  6-7  ll";  Dalton 
v.  Angus,  6-808;  Capital  &  Counties  Bk.  v.  Henty,  7-769;  Countess 
of  Rothes  v.  Kircaldy  Waterworks,  7-700;  Sarf  v.  Jardine,  7-345; 
Rhodes  v.  Rhodes,  7-197;  Maddison  v.  Alderson,  8-487;  Hughes  v. 
Percival,  8-445;  Bradlaugh  v.  Clarke,  8-369;  Harvey  v.  Farnie,  8-57; 
Singer  Mfg.  Co.,  v.  Loog,  8-28;  Thomson  v.  Weems,  9-677;  Fookes 
v.  Beer,' 9-614;  Mersey  Steel  Co.  v.  Naylor,  9-442;  Collins  «.  Collins, 
9-228;  Smith  v.  Chadwick,  9-192;  Lyell  v.  Kennedy,  9-84;  Ewing  ». 
Orr  Ewing,  9^2;  10^99;  Speight  v.  Gaunt,  9-15;  Svendsen  v.  Wal- 
lace, 10-409;  Baroness  Wenlock  v.  River  Dee  Co.  10-358;  Met.  Bank 
v.  Pooley,  10-220;  Sewell  v.  Burdick,  10-90;  Seath  v.  Moore,  11-369; 
London  Ry.  v.  Truman,  11-58. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  775 

as  a  judge.  A  litigant  named  Rosanna  Fray,  who  felt  ag- 
grieved at  his  disposition  of  her  case,  sued  him  for  damages, 
and  the  case  of  Fray  v.  Blackburn,  3  B.  &  S.  576,  formally 
established  the  principle  that  no  action  will  lie  against  a 
judge  of  a  superior  court  for  anything  done  in  his  judicial 
capacity,  although  it  be  alleged  to  have  been  done  maliciously 
and  corruptly. 

Besides  Wightman  and  Crompton  (1853-65)  in  the  earlier 
part,  the  other  principal  puisnes  in  the  Queen's  Bench  during 
the  period  were  Mellor  (1861-79),  Shee  (1863-68),  and 
Lush  (1865-80).  Lush  was  the  ablest  of  these  judges;  he 
closed  his  painstaking  and  useful  service  in  the  Court  of 
Appeal. 

During  this  period  the  Court  of  Common  Pleas  grew 
rapidly  in  importance  and  reached  its  highest  standard. 
After  Cockburn's  short  service  in  this  court  (1856-59)  the 
succeeding  chiefs  were  Erie  (1859-66),  and  Bovill  (1866-73). 
In  this  court  Erie  added  to  the  substantial  reputation  that  he 
had  made  on  the  Queen's  Bench.  The  Court  of  Common  Pleas 
under  his  presidency,  as  the  Attorney-General  said  on  his 
retirement,  "  obtained  the  highest  confidence  of  the  suitor, 
the  public  and  the  profession."  Bovill  was  unsurpassed  in 
his  practical  mastery  of  commercial  law,  but  his  work  as  a 
judge  suffered  from  want  of  more  careful  reflection  in  reach- 
ing conclusions. 

The  genius  of  this  court,  however,  was  Willes  (1855-71), 
who  was  universally  regarded  by  his  contemporaries  as  the 
most  learned  lawyer  of  his  time.  He  is  said  to  have  read 
systematically  all  the  reports,  from  the  first  Year  Book  to 
the  last  volume  of  Meeson  and  Welsby.  He  was  consequently 
familiar  with  the  history  of  the  law,  and  understood  the  rela- 
tion which  the  principles  of  his  day  bore  to  past  times.  He 
was  intimately  acquainted  with  all  the  changes  which  the 
common  law  had  undergone,  and  with  all  the  rules  and  forms 
of  the  ancient  system  of  pleading.  He  knew  by  heart  every 
old  term  and  maxim.  To  this  thorough  knowledge  of  the 
principles  and  history  of  English  law  in  all  its  branches  he 
added  an  extensive  and  accurate  acquaintance  with  foreign 
systems  of  jurisprudence.  To  the  great  fountain  head  of 


776  V.     BENCH   AND   BAR 

civil  law  he  habitually  resorted  for  suggestion  and  compari- 
son and  analysis.  Withal,  his  vast  learning  was  his  servant, 
not  his  master.  And  he  could  be  as  forcible  with  brevity  as 
he  was  impressive  in  learning.  Although  his  opinions  are 
generally  full  and  completely  reasoned,  his  conclusion  in  the 
bankruptcy  case  of  Marks  v.  Feldman,  5  Q.  B.  284,  is  one 
of  the  shortest  opinions  on  record :  "  Dolus  circuiter  non 
purgatur."  He  constantly  drew  upon  his  vast  store  of  case 
law  for  illustration  and  argument,  to  the  unfailing  interest 
of  the  profession,  if  not  with  uniform  success  with  reference 
to  the  issue ;  but  he  never  relied  on  mere  authority  where 
a  principle  could  be  discovered.  An  occasional  tendency 
toward  academical  refinements,  apparently  inseparable  from 
most  scholastic  minds,  may  be  observed  in  his  work,  but  it 
is  almost  invariably  confined  to  the  details  of  his  exposition. 
His  substantial  conclusion  is  always  marked  by  sound  com- 
mon sense.  Unlike  so  many  of  his  associates,  whose  technical 
learning  was  inferior  to  his  own,  he  had  no  respect  for  tech- 
nicalities, which  he  never  hesitated  to  brush  aside  when  they 
interfered  with  an  obvious  principle.  It  was  this  combination 
of  mastery  of  detail  and  good  sense  which  led  to  his  employ- 
ment in  the  preparation  of  the  common  law  procedure  acts. 
No  one  less  familiar  with  the  useless  subtleties  and  effete  tech- 
nicalities of  the  legal  system  of  that  time,  or  less  endowed 
with  the  breadth  of  mind  necessary  to  free  himself  from  their 
trammels,  could  have  effected  so  completely  and  satisfactorily 
the  revolution  brought  about  by  those  acts. 

Although  reserved  in  disposition,  among  his  intimates  he 
seems  to  have  been  a  singularly  attractive  personality.  The 
authority  of  judicial  station  never  dimmed  the  finer  sensibili- 
ties of  his  nature.  He  was  a  man  of  the  broadest  culture,  and 
seems  to  have  taken  all  knowledge  for  his  province.  The 
classics  were  his  familiar  companions,  and  he  found  time  to 
master  all  the  spoken  languages  of  Europe.  The  tone  of  his 
mind  is  largely  reflected  in  the  poetry  of  Wordsworth,  of 
which  he  was  a  diligent  student  and  admirer.  In  the  unre- 
mitting performance  of  his  judicial  duties  and  the  indefati- 
gable pursuit  of  knowledge  his  over-worked  mind  finally  gave 
way,  and,  in  a  moment  of  temporary  insanity,  he  committed 


80.     VEEDER:  A  CENTURY  OF  JUDICATURE  777 

suicide.  His  remarks  in  the  Fernandez  contempt  case,  30 
L.  J.,  C.  P.  321,  in  answer  to  the  suggestions  of  counsel  that 
the  dignity  and  privileges  of  the  court  were  involved,  may 
be  taken  as  a  true  index  to  his  judicial  character:  "  I  take 
leave  to  say  that  I  am  not  conscious  of  the  vulgar  desire  to 
elevate  myself,  or  the  court  of  which  I  may  be  a  member,  by 
grasping  after  pre-eminence  which  does  not  belong  to  me, 
and  that  I  will  endeavor  to  be  ever  valiant  in  preserving  and 
handing  down  those  powers  to  do  justice  and  to  maintain 
truth  which,  for  the  common  good,  the  law  has  entrusted  to 
the  judges."  * 

Besides  Williams,  who  continued  his  service  in  this  period, 
valuable  assistance  was  rendered  by  Byles  (1858-73),  Keat- 
ing (1859-75),  and  M.  E.  Smith  (1865-71).  Byles  con- 
tributed largely  to  the  popularity  of  the  court  in  commercial 

1  Some  of  his  most  elaborate  and  exhaustive  opinions  are  Beamish 
v.  Beamish,  9  H.  L.  C.  274,  an  examination  of  the  ecclesiastical  sanctions 
to  the  contract  of  marriage;  Ex  parte  Fernandez,  30  L.  J.,  C.  P.  321, 
on  the  validity  of  a  commitment  for  contempt  by  a  court  of  assize; 
Lloyd  v.  Guibert,  I  Q.  B.  115,  as  to  what  law  governs  as  to  sea  dam- 
age in  a  contract  of  affreightment;  Exposito  v.  Bowden,  8  St.  Tr. 
817,  as  to  the  effect  on  a  contract  of  affreightment  of  trading  with 
an  enemy;  Mayor  of  London  v.  Cox,  3  E.  and  I.  App.  252,  on  the 
history  and  principles  of  the  practice  of  foreign  attachment;  Notara 
v.  Henderson,  7  Q.  B.  225,  on  the  duties  of  the  master  of  a  vessel ; 
Seymour  v.  London  and  Insurance  Co.,  41  L.  J.,  C.  P.  193,  on  contra- 
band of  war;  Phillips  v.  Eyre,  6  Q.  B.  1,  on  the  jurisdiction  of  English 
courts  over  acts  committed  abroad ;  Mody  v.  Gregson,  4  Ex.  49,  as 
to  the  application  of  the  doctrine  of  warranty  in  a  sale  by  sample; 
Dawkins  v.  Lord  Rokeby,  4  F.  and  F.  829,  as  to  absolute  privilege  in 
libel ;  Kenwood  v.  Harrison,  7  C.  P.  606,  on  fair  criticism  of  matters 
of  public  interest;  Shrewsbury  v.  Scott,  6  C.  B.  1,  on  the  disabilities 
of  Catholics  with  respect  to  real  property.  It  may  be  said  of  all  these 
opinions,  as  Lord  Campbell  said  in  the  House  of  Lords  of  Willes's 
opinion  in  Beamish  v.  Beamish,  that  they  "  display  extraordinary  re- 
search and  will  hereafter  be  considered  a  repertory  of  all  the  learning 
to  be  found  in  any  language  upon  the  subject."  For  further  study, 
see  also:  Cook  v.  Lister,  13  C.  B.  (n.  s.)  543  (bills  of  exchange); 
Dakin  v.  Oxley,  15  C.  B.  (n.s.)  646  (charter  party);  Gt.  Western  Ry. 
v.  Talley,  6  C.  P.  44  (negligence);  Hall  v.  Wright,  29  L.  J.,  Q.  B.  43 
(breach  of  promise) ;  Intermaur  v.  Dames,  1  C.  P.  274  (negligence) ; 
lonides  v.  Marine  Ins.  Co.,  14  C.  B.  (n.  s.)  259  (insurance)  ;  Kids- 
ton  v.  Empire  Marine  Ins.  Co.,  1  C.  P.  535  (insurance) ;  Malcomson 
v.  O'Dea,  10  H.  L.  611  (evidence);  Mountstephen  v.  Lakeman,  7  Q.  B. 
196  (statute  of  frauds)  ;  Patter  v.  Rankin,  3  C.  P.  562  (marine  insur- 
ance) ;  Ryder  v.  Wombell,  4  Ex.  32  (infant's  necessaries) ;  Reg.  v. 
Rowton,  10  Cox  Cr.  Cas.  37  (evidence) ;  Reuss  v.  Picksley,  1  Ex.  342 
(statute  of  frauds)  ;  Santos  v.  Illidge,  28  L.  J.,  C.  P.  317  (emancipa- 
tion act)  ;  Wilson  v.  Jones,  2  Ex.  139  (insurance)  ;  Bonillon  v.  Lup- 
ton,  15  C.  B.  (n.  s.)  113  (marine  insurance). 


778  V.    BENCH   AND   BAR 

cases,  in  which  he  was  extremely  accurate.  Smith  was  an 
all-round  influence  for  good;  sagacious,  sensible  and  prac- 
tical, he  added  to  the  high  standing  of  his  tribunal. 

During  this  period  the  Court  of  Exchequer  declined  in 
reputation,  particularly  during  the  latter  half.  Kelly,  who 
succeeded  Pollock  in  1866  as  Chief  Baron,  was  old  and  soon 
became  infirm;  and  an  ill-assorted  collection  of  barons,  of 
whom  Martin  was  the  ablest,1  detracted  from  the  unity  and 
authority  of  the  court.  Nevertheless,  this  court  was  distin- 
guished throughout  the  period  by  the  services  of  Bramwell 
(1856-76). 

In  any  consideration  of  modern  English  judges  Baron 
Bramwell  must  hold  a  conspicuous  place.  In  mere  length 
of  service  (thirty-six  years)  he  is  surpassed  in  modern  times 
only  by  Baron  Parke,  whom  he  succeeded.  He  is  an  interest- 
ing link  between  the  past  and  the  present.  Coming  to  the 
bar  soon  after  Lord  Tenterden  apologetically  made  a  few 
changes  in  the  supposed  perfections  of  the  common  law,  he 
lived  to  frame  the  Common  Law  Procedure  Act  and  to  assist 
in  the  final  overthrow  of  the  old  system  by  the  Judicature 
Act.  He  was  doubtless  a  great  lawyer  and  a  learned  judge, 
but  his  marked  personality  exerted  an  influence  not  limited 
by  learning  —  the  breezy,  invigorating  influence  of  sturdy 
common  sense  caustically  applied  to  particular  problems.  In 
almost  every  respect  he  was  a  complete  contrast  to  his  pro- 
saic predecessor,  Baron  Parke.  He  chose  to  mask  a  genial 
and  generous  nature  under  the  garb  of  humorous  cynicism ; 
but  in  reality  he  was  no  cynic.  Throughout  his  career  he 
was  one  of  the  most  popular  as  well  as  interesting  of  the 
judges.  With  a  personality  as  vigorous  as  that  of  Maule  or 
of  Westbury,  he  was  one  of  the  sturdiest,  manliest  and  kind- 
est of  men.2  He  did  not  always  respect  conventional  tradi- 

1  Miller  v.  Salomons,  7  Ex.  475,  etc.;  Embrey  v.  Owen,  6  ib.  353; 
Bellamy  r.  Majorihanks,  7  ib.  389;  Crouch  v.  Great  Northern  Ry.,  11 
ib.  742;  Hubbertsty  v.  Ward,  8  ib.  330;  Read  v.  Legard,  6  16.  636; 
Dublin  Ry.'  v.  Black,  8  16.  181. 

3  Upon  his  retirement  he  could  recall  only  one  unpleasantness.  "  Once 
a  very  old  and  dear  friend  of  mine  provoked  me  so  much  and  made 
me  so  angry  that  I  actually  threatened  to  commit  him,  and  I  remember 
that  on  my  asking  him  what  he  would  have  done  if  I  had  committed 
him,  he  answered  promptly,  '  Move  for  my  own  discharge.' " 


20.     VEEDER:  A  CENTURY  OF  JUDICATURE  779 

tions,  and  his  plain  directness  of  speech  sometimes  shocked 
sensitive  people.  In  the  fearless  discharge  of  his  judicial 
functions  he  was  never  subservient  to  public  opinion.  Some 
observations  in  a  charge  having  met  with  applause,  he  paused 
and  then  said  quietly,  "  I  recall  those  words  —  I  must  have 
been  saying  something  foolish." 

Bramwell  received  his  legal  training  in  the  strictest  school 
of  special  pleading,  and  was  familiar  with  all  its  mysteries. 
But  he  was  not,  like  Parke,  blind  to  the  defects  of  the  system. 
"  I  think,  "  he  said,  "  that  some  twenty  or  thirty  years  hence, 
when  the  present  generation  of  lawyers  has  ceased  to  exist, 
it  will  scarcely  be  believed  that  such  a  state  of  things  did  ex- 
ist in  a  civilized  country."  Consequently,  when  public  opin- 
ion was  ripe  for  a  change,  Bramwell  was  chosen  for  the  task. 
It  was  conceded  that  Bramwell  and  Willes  did  most  of  the 
work.  The  final  overthrow  of  the  old  system  by  the  Judica- 
ture Acts  received  his  cordial  support. 

He  occasionally  showed  the  effect  of  overtraining  in  the 
dialectic  of  special  pleading  in  his  fondness  for  framing  di- 
lemmas (see  his  opinion  in  the  Bernina  case,  13  App.  Cas. 
11)  and,  more  rarely,  in  the  maintenance  of  metaphysical 
positions  somewhat  removed  from  common  sense.  One  of  the 
most  conspicuous  instances  of  this  susceptibility  to  scho- 
lastic logic  was  his  contention  that  an  action  for  malicious 
prosecution  will  not  lie  against  a  corporation  (Abrath  v. 
North  Eastern  Ry.,  11  App.  Cas.  247).  A  corporation,  he 
maintained,  is  incapable  of  malice  or  motive;  if  the  stock- 
holders direct  a  malicious  prosecution  they  are  personally 
liable,  while  such  action  by  the  directors  would  bo  ultra  vires.1 
Another  characteristic  perversion  was  his  application  of  the 
maxim  volenti  non  fit  injuria.  "  It  is  a  rule  of  good  sense," 
he  said  in  Smith  v.  Baker,  (1891)  A.  C.  325,  "  that  if  a  man 
voluntarily  undertakes  a  risk  for  a  reward  which  is  adequate 
to  induce  him,  Tie  shall  not,  if  he  suffers  from  the  risk,  have 
a  compensation  for  which  he  did  not  stipulate.  He  can,  if 
he  chooses,  say,  '  I  will  undertake  the  risk  for  so  much,  and 

1  Observe,  also,  his  position  on  the  liability  for  rent  of  an  original 
lessee  whose  assignee  has  become  bankrupt  and  disclaimed  the  case. 
Smyth  v.  North,  7  Ex.  D.  250. 


780  V.    BENCH   AND   BAR 

if  hurt  you  must  give  me  so  much  more,  or  an  adequate 
equivalent  for  the  hurt.'  But  drop  the  maxim.  Treat  it 
as  a  question  of  bargain.  The  plaintiff  here  thought  the 
pay  worth  the  risk  and  did  not  bargain  for  a  compensation 
if  hurt ;  in  effect  he  undertook  the  work  with  its  risks  for  his 
wages  and  no  more.  He  says  so.  Suppose  he  had  said, 
*  If  I  am  to  run  this  risk  you  must  give  me  six  shillings  a 
day,  and  not  five  shillings,'  and  the  master  agreed,  would  he 
in  reason  have  a  claim  if  he  got  hurt?  Clearly  not.  What 
difference  is  there  if  the  master  says,  *  No,  I  will  only  give 
the  five  shillings.'  None.  I  am  ashamed  to  argue  it."  He 
reargued  the  same  matter  in  Membery  v.  Great  Western 
Ry.  14  App.  Cas.  179:  "I  hold  that  where  a  man  is  not 
physically  constrained,  where  he  can  at  his  option  do  a  thing 
or  not,  and  he  does  it,  the  maxim  applies.  What  is  volens? 
Willing ;  and  a  man  is  willing  when  he  wills  to  do  a  thing  and 
does  it.  No  doubt  a  man,  popularly  speaking,  is  said  to  do 
a  thing  unwillingly,  with  no  good  will ;  but  if  he  does  it,  no 
matter  what  his  dislike  is,  he  prefers  doing  it  to  leaving  it 
alone.  He  wills  to  do  it.  He  does  not  will  not  to  do  it.  I 
suppose  nolens  is  the  opposite  of  volens,  its  negative.  There 
are  two  men ;  one  refuses  to  do  work,  wills  not  to  do  it,  and 
does  not  do  it.  The  other  grumbles,  but  wills  to  do  it  and 
does  it.  Are  both  men  nolens,  unwilling?  Suppose  an  extra 
shilling  induced  the  man  who  did  the  work.  Is  he  nolens  or 
has  the  shilling  made  him  volens?  There  seems  to  be  a 
strange  notion  that  a  man  who  does  a  thing  and  grum- 
bles is  nolens,  is  unwilling,  has  not  the  will  to  do  it,  or  that 
there  is  something  intermediate  nolens  and  volens,  something 
like  a  man  being  without  a  will  and  yet  who  wills.  If  the 
shilling  made  him  volens,  why  does  not  the  desire  to  continue 
employed  do  so?  If  he  would  have  a  right  to  refuse  the  work 
and  his  discharge  would  be  wrongful,  with  a  remedy  to  him, 
why  does  not  his  preference  of  a  certain  to  an  uncertain  law 
not  make  him  volens  as  much  as  any  other  motive?  There 
have  been  any  infinity  of  profoundly  learned  and  useless  dis- 
cussions as  to  freedom  of  the  will ;  but  this  notion  is  new." 
The  truth  is,  the  good  Baron's  political  views  were  so  pro- 
nounced that  in  a  certain  class  of  cases  they  influenced  his 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  781 

judicial  opinions.  He  was  the  stoutest  of  liberals,  and  looked 
with  alarm  upon  modern  socialistic  tendencies  — "  grand- 
motherly protection,"  he  termed  it.  "  Please  govern  me  as 
little  as  possible,"  he  said.  This  was  his  point  of  view  on 
many  legal  doctrines.1  Sometimes  this  tendency  moved  in  di- 
rections where  his  fearless  independence  and  plain  speech 
were  most  needed.  In  the  trades  union  case,  R.  v.  Druitt, 
10  Cox  Cr.  Cas.  592,  he  asserted  in  broad  terms  that  by  the 
common  law  of  England  the  liberty  of  a  man's  mind  and  will, 
how  he  should  bestow  himself  and  his  means,  his  talents  and 
his  industry,  was  as  much  the  subject  of  the  law's  protection 
as  was  that  of  his  body.  Certain  details  of  his  exposition 
of  the  law  in  that  case  have  since  been  regarded  as  obiter 
dicta,  but  his  views  deserve  careful  consideration.  Nothing 
could  be  saner  than  his  views  in  the  great  Mogul  Steamship 
case  (1892),  A.  C.  25,  on  the  vital  subject  of  freedom  of 
trade.  "  It  is  admitted,"  he  said,  "  that  there  may  be  fair 
competition  in  trade,  that  two  may  offer  to  join  and  com- 
pete against  a  third.  If  so,  what  is  the  definition  of  fair  com- 
petition? What  is  unfair  that  is  neither  forcible  nor  fraud- 
ulent? It  seems  strange  that  to  enforce  freedom  of  trade, 
of  action,  the  law  should  punish  those  who  make  a  perfectly 
honest  agreement  with  a  belief  that  it  is  fairly  required 
for  their  protection."  The  inquiry,  "  What  is  unfair  that  is 
neither  forcible  nor  fraudulent?  "  is  the  sum  and  substance 
of  his  legal  and  political  philosophy.  Throughout  his  ju- 
dicial and  political  career  he  stood  firmly  on  the  ground  of 
strict  adherence  to  contract.  "  A  bargain  is  a  bargain,"  he 
used  to  say;  and  he  strongly  deprecated  making  contracts 
for  people,  whether  by  legislation  or  through  equity.  It  may 
be  inferred,  therefore,  that  he  had  little  sympathy  with  cer- 
tain equitable  doctrines.  In  the  case  of  Salt  v.  Northampton, 
(1892)  A.  C.  18,  on  the  validity  of  fetters  on  redemption  in 
mortgage  transactions,  he  took  occasion  to  say :  "  Whether 
it  would  not  have  been  better  to  have  held  people  to  their  bar- 
gains, and  taught  them  by  experience  not  to  make  unwise 

1  See  his  articles  on  "  Drink  "  in  Nineteenth  Century,  May  and  June, 
1885,  and  his  pamphlet  "  On  the  Liahilities  of  Masters  to  Workmen  for 
Injuries  from  Fellow-Servants,"  London,  1880. 


782  V.    BENCH   AND   BAR 

ones,  rather  than  relieve  them  when  they  had  done  so,  may 
be  doubtful.  We  should  have  been  spared  the  double  condi- 
tion of  things,  legal  rights  and  equitable  rights,  and  a  system 
of  documents  which  do  not  mean  what  they  say.  But  the 
piety  or  love  of  fees  of  those  who  administered  equity  has 
thought  otherwise,  and  probably  to  undo  this  would  be  more 
costly  and  troublesome  than  to  continue  it."  And  he  ad- 
verts, in  Derry  v.  Peck,  14  App.  Cas.  337,  to  what  he  con- 
sidered the  mistake  made  by  courts  of  equity  in  "  disre- 
garding a  valuable  general  principle  in  their  desire  to  effect 
what  is,  or  is  thought  to  be,  justice  in  a  particular  in- 
stance." But  if  Tie  was  inclined  to  lean  too  much  toward  the 
legal  as  distinguished  from  the  equitable  view  of  rights,  he 
seldom  failed  to  temper  his  common  law  views  with  the  good 
sense  which  gives  to  technical  rules  their  just  limitations. 
Bramwell  was  quick  to  see  the  weak  side  of  a  case  against  a 
railway  corporation.  This  tendency  was  not,  however,  an 
original  prejudice,  but  rather  an  effort  to  rectify  the  injus- 
tice done  by  misdirected  sympathy  for  the  weaker  side.  "  Let 
us  hold  to  the  law.  If  we  want  to  be  charitable,  let  us  gratify 
ourselves  out  of  our  own  pockets"  (1891)  A.  C.  346.  The 
authorities,  he  said  on  another  occasion,  "  show  a  generous 
struggle  on  the  one  hand  to  make  powerful  companies  liable 
to  individuals,  and  on  the  other  hand  an  effort  for  law  and 
justice.  Sometimes  one  succeeds,  sometimes  the  other,  and 
the  cases  conflict  accordingly"  (13  App.  Cas.  51).  "It 
does  not  follow  that  if  a  man  dies  in  a  fit  in  a  railway  car- 
riage there  is  a  prima  facie  case  for  his  widow  and  children, 
nor  that  if  he  has  a  glass  in  his  pocket  and  sits  on  it  and 
hurts  himself,  there  is  something,  which  calls  for  an  answer 
or  explanation  from  the  company." 

Aside,  however,  from  the  well-recognized  class  of  cases  in 
which  he  was  known  to  entertain  favorite  prepossessions,  he 
was  a  sound  judeje.  As  a  whole,  clearness  of  perception, 
strength  of  judgment  and  wide  acquaintance  with  the  world 
of  affairs  are  indelibly  stamped  upon  his  work.  On  many 
occasions  his  quick  perception,  good  sense  and  dry  humor 
were  admirable  solvents  to  the  doubts  and  difficulties  of  his 
more  subtle-minded  brethren.  A  good  instance  is  his  char- 


20.     VEEDER:  A  CENTURY  OF  JUDICATURE  783 

acterization  of  the  distinction  sought  to  be  made  in  Derry  v. 
Peek,  14  App.  Cas.  337,  between  legal  and  actual  fraud: 
"  I  do  not  think  we  need  trouble  ourselves  about  '  legal 
fraud,'  nor  whether  it  is  a  good  or  bad  expression,  because 
I  hold  that  actual  fraud  mustjbe  proved  in  this  case  to  make 
the  defendants  liable,  and,  as  I  understand,  there  is  never 
any  occasion  to  use  the  phrase  '  legal  fraud  '  except  when 
actual  fraud  cannot  be  established.  '  Legal  fraud '  is  only 
used  when  some  vague  ground  of  action  is  to  be  resorted  to, 
or,  generally  speaking,  when  the  person  using  it  will  not 
take  the  trouble  to  find,  or  cannot  find,  what  duty  has  been 
violated  or  right  infringed,  but  thinks  that  a  claim  is  some- 
how made  out."  In  commercial  law,  in  particular,  he  was  a 
recognized  authority.  His  powerful  dissenting  opinion  in 
the  Vagliano  case  (1891),  A.  C.  107,  shows  his  familiarity 
with  the  subject.  It  was  he  who  suggested  the  theory  of 
limited  liability.  In  the  domain  of  torts,  the  application  of 
the  doctrine  sic  utere  tuo  ut  alienum  non  laedas  in  Rylands  v. 
Fletcher  was  due,  in  the  first  instance,  to  Bramwell,  who  dif- 
fered from  the  other  judges  in  the  Exchequer. 

Probably  he  was  at  his  best  sitting  with  a  special  jury. 
There,  what  has  been  aptly  called  the  high  initial  velocity  of 
his  mind  in  mastering  facts,  assaying  evidence  and  apply- 
ing general  principles  to  particular  facts,  came  into  full 
play.  His  insight  into  human  nature  was  keen ;  he  knew  its 
weaknesses  and  its  faults,  and  humbug  had  no  chance  before 
him.  The  force  of  common  sense  and  caustic  humor  could  go 
no  further  than  his  admirable  charges  to  juries.  In  a  case 
where  a  farmer  was  charged  with  shooting  at  a  boy  who  was 
stealing  apples,  after  a  lengthy  argument  by  the  counsel  for 
the  defendant,  Bramwell  charged  the  jury  as  follows:  "  Con- 
sidering the  materials  he  had,  I  am  surprised,  gentlemen, 
that  the  learned  counsel  did  not  make  his  speech  longer.  I, 
however,  shall  leave  the  case  to  you  in  eight  words:  The 
prisoner  aimed  at  nothing  and  missed  it."  He  had,  more- 
over, rare  skill  in  putting  his  view  of  a  case  before  a  jury 
without  seeming  to  take  a  side.  His  highly  original  and  in- 
dependent mind  contributed  much  to  enliven  the  reports  of 
his  time.  His  clear  and  analytical  intellect  expressed  itself 


784  V.    BENCH   AND   BAR 

in  a  vigorous  and  epigrammatic  style  which  is  as  rare  in  the 
reports  as  it  is  refreshing.  No  man  appeared  to  think  less 
of  words  and  more  of  substance,  yet  few  Englishmen  have 
used  their  mother  tongue  with  greater  effect.  His  discus- 
sion, in  the  case  of  the  Commissioners  of  the  Income  Tax  v. 
Pemsel,  (1891)  A.  C.  531,  as  to  what  constitutes  a  charity, 
is  a  good  example  of  his  happy  colloquialism: 

"  I  hold  that  the  conversion  of  heathens  and  heathen  na- 
tions to  Christianity  or  any  other  religion  is  not  a  charitable 
purpose.  That  it  is  benevolent,  I  admit.  The  provider  of 
funds  for  such  a  purpose  doubtless  thinks  that  the  conver- 
sion will  make  the  converts  better  and  happier  during  this 
life,  with  a  better  hope  hereafter.  I  dare  say  this  donor  did 
so.  So  did  those  who  provided  the  fagots  and  racks  which 
were  used  as  instruments  of  conversion  in  times  gone  by.  I 
am  far  from  suggesting  that  the  donor  would  have  given 
funds  for  such  a  purpose  as  torture;  but  if  the  mere  good 
intent  make  the  purpose  charitable,  then  I  say  the  intent  is 
the  same  in  the  one  case  as  in  the  other.  And  I  believe  in 
all  cases  of  propagandism  there  is  mixed  up  a  wish  for  the 
prevalence  of  those  opinions  we  entertain,  because  they  are 
ours.  But  what  is  a  charitable  purpose?  Whatever  defini- 
tion is  given,  if  it  is  right  as  far  as  it  goes,  in  my  opinion 
this  trust  is  not  within  it.  I  will  attempt  one.  I  think  a 
charitable  purpose  is  where  assistance  is  given  to  the  bring- 
ing up,  feeding,  clothing,  lodging  and  education  of  those 
who  from  poverty,  or  comparative  poverty,  stand  in  need  of 
such  assistance  —  that  a  temporal  benefit  is  meant,  being 
money  or  having  a  money  value.  This  definition  is  probably 
inefficient.  It  very  likely  would  not  include  some  charitable 
purposes,  though  I  cannot  think  what,  and  include  some  not 
charitable,  though  also  I  cannot  think  what ;  but  I  think  it 
substantially  correct,  and  that  no  well-founded  amendment 
of  it  would  include  the  purposes  to  which  this  fund  is  dedi- 
cated. .  :  .  I  think  there  is  some  fund  for  providing  oys- 
ters at  one  of  the  Inns  of  Court  for  the  Benchers;  this, 
however  benevolent,  would  hardly  be  called  charitable;  so 
of  a  trust  to  provide  a  band  of  music  on  the  village 
green." 


gO.     VEEDER:  A  CENTURY  OF  JUDICATURE  785 

For  authorities  however  venerable,  if  irrational  or  founded 
on  doubtful  principles,  he  had  scant  respect.  "  I  am  prone," 
he  once  said,  "  to  decide  cases  on  principles,  and  when  I 
think  I  have  got  the  right  one  I  am  apt  (I  hope  I  am  not 
presumptuous),  like  Caliph  Omar,  to  think  authorities  wrong 
or  needless."  He  was  well  equipped  with  self-confidence. 
"  Lord  Cairns  was  a  great  lawyer  and  a  consummate  judge," 
he  said  in  one  case,  "  but  I  differ  with  him  unhesitatingly." 
He  was  too  tenacious  of  his  personal  opinions,  some  thought. 
The  view  that  posting  acceptance  of  an  offer  which  never 
reaches  the  offerer  constitutes  a  contract,  is  one  of  the  doc- 
trines to  which  he  would  not  assent.1  It  is  often  amusing 
to  observe  his  efforts  to  enforce  his  favourite  views.  In  the 
Membery  case  2  his  discussion  of  the  doctrine  volenti  non  fit 
injuria  was  really  unnecessary  to  the  determination  of  the 
issue.  This  is  the  way  he  introduces  it :  "  Of  course  it  is  in 
a  sense  not  necessary  that  I  should  express  an  opinion  on  this, 
as  the  ground  I  have  just  mentioned,  in  my  opinion,  disposes 
of  the  case.  But  if,  instead  of  mentioning  that  ground  first, 
I  had  mentioned  the  one  I  am  now  dealing  with,  it  would,  on 
the  same  reasoning,  be  unnecessary  to  mention  that.  What 
I  am  saying  is  not  obiter,  not  a  needless  expression  of  opinion 
on  a  matter  not  relevant  to  the  decision.  There  are  two  an- 
swers to  the  plaintiff,  and  I  decide  against  him  on  both,  one 
as  much  as  the  other."  3 

'British  and  American  Tel.  Co.  v.  Colson,  6  Ex.  118;  Household 
Fire  Insurance  Co.  v.  Grant,  4  Ex.  D.  216. 

J14  A.C.  179. 

8  Baron  B  ram  well's  principal  efforts  are:  Derry  v.  Peek,  14  App.  Cas. 
837  (deceit) ;  Jackson  v.  Insurance  Co.,  10  C.  P.  25  (marine  insurance) ; 
Hall  v.  Wright  (breach  of  promise)  ;  Bullen  v.  Sharp,  1  C.  P.  86  (part- 
nership) ;  Debenham  v.  Mellon,  5  Q.  B.  D.  394  (wife's  necessaries); 
Rankin  v.  Patter,  6  E.  and  I.  App.  131  (marine  insurance) ;  Reg.  v. 
Druitt,  10  Cox  Cr.  Cas.  592;  Commrs.  of  Income  Tax  v.  Pemsel,  (1891) 
A.  C.  531  (charity);  Mogul  Steamship  Co.  v.  McGregor,  (1892)  A.  C. 
25  (conspiracy)  ;  Mills  v.  Armstrong,  13  A.  C.,  1  (negligence)  ;  Capital 
and  Counties  Bank  v.  Henty,  7  A.  C.  741  (libel);  Degg  v.  Midland  Ry. 
1  H.  and  W.  781  (master  and  servant) ;  Jones  v.  Tapling,  31  L.  J.,  C.  P. 
342  (easements) ;  Gray  v.  Carr,  6  Q.  B.  522  (shipping) ;  Hammersmith 
Ry.  v.  Brand  (damage  for  vibration) ;  Bryant  P.  Foot,  3  Q.  B.  497  (pre- 
scription); Rodocanachi  v.  Elliott,  9  C.  P.  578  (marine  insurance); 
Mullinger  v.  Florence,  3  Q.  B.  D.  484  (liens) ;  Clark  v.  Molyneux,  3 
Q.  B.  D.  237  (libel);  Massam  v.  Cattle  Food  Co.,  14  Ch.  D.  763  (trade 
name)  ;  Honck  P.  Muller,  7  Q.  B.  D.  92  (sales) ;  Sewell  p.  Burdick,  10 


786  V.    BENCH   AND   BAR 

(b)  Chancery  Courts 

The  courts  of  equity  responded  slowly  to  the  spirit  of  re- 
form. A  new  and  better  period  in  chancery  may  be  said 
to  have  begun  with  the  accession  of  Lord  Westbury  to  the 
woolsack  in  1861.  During  the  succeeding  fifteen  years  the 
Chancery  was  presided  over  by  Westbury,  Cairns,  Hather- 
ley  and  Selborne.  Of  these  judges,  Westbury,  Cairns  and 
Selborne  rank  among  the  most  distinguished  names  known 
to  English  law. 

Lord  Westbury  once  said  of  a  distinguished  contempo- 
rary that  "  the  monotony  of  his  character  was  unrelieved 
by  a  single  fault."  From  such  a  characterization  Westbury 
himself  was  surely  exempt.  With  professional  capacity  of 
the  highest  order  he  combined  peculiarities  of  mind  and 
faults  of  character  which  marred  much  of  his  work.  His 
eminence  as  a  lawyer  was  unquestioned  by  his  bitterest  ene- 
mies. Baron  Parke  considered  him  the  greatest  advocate  at 
the  bar ;  Sir  George  Jessel  described  him  as  a  man  of  genius 
who  had  taken  to  the  law.  Gladstone,  who  had  frequent  oc- 
casion to  learn  the  temper  of  Westbury's  mind,  said  of  him: 
"  It  was  subtlety  of  thought,  accompanied  with  the  power  of 
expressing  the  most  subtle  shades  of  thought  in  clear,  forci- 
ble, and  luminous  language,  which  always  struck  me  most 
among  the  gifts  of  Lord  Westbury.  In  this  extraordinary 
power  he  seemed  to  have  but  one  rival  among  all  the  men, 

A.  C.  74  (bill  of  lading) ;  Britton  t>.  Gt.  Western  Cotton  Co.,  7  Ex.  130 
(master  and  servant) ;  Duke  of  Buccleuch  v.  Board  of  Works,  3  Ex. 
306;  Reg.  v.  Castro,  5  Q.  B.  D.  507  (criminal  procedure);  Drew  t>. 
Nunn,  4,  Q.  B.  D.  668  (agency) ;  Ryder  v.  Wombell,  3  Ex.  218  (infants' 
necessaries). 

Some  of  his  more  characteristic  opinions  as  to  method  and  tendencies 
are:  Abrath  v.  Northeastern  Ry.,  11  A.  C.  247  (malicious  prosecution); 
Great  Western  Ry.  v.  Bunch,  13  A.  C.  31  (negligence) ;  Membery  ».  Gt. 
Western  Ry.,  14  A.  C.  179;  Sullivan  v.  Metcalfe,  5  C.  P.  D.  469  (com- 
pany); Salt,  v.  Marquis  of  Northampton,  (1892)  A.  C.  18  (mortgage); 
Bamford  v.  Turnley,  3  B.  and  S.  62  (nuisance)  ;  Bridges  ».  No.  London 
Ry.  (negligence);  Twycross  v.  Grant,  2  C.  P.  D.  469  (company). 

His  dissents  are  always  vigorous  and  original.  See  the  following: 
Bank  of  England  v.  Vagliano,  (1891)  A.  C.  107  Smith  v.  Baker,  (1891) 
A.  C.  S25;  Household  Fire  Ins.  Co.  v.  Grant,  4  Ex.  D.  216  (contract); 
Riche  v.  Ashbury  Co.,  9  Ex.  224  (company)  ;  Jackson  v.  Met.  Ry.,  2  C. 
P.  D.  125  (negligence)  ;  Johnson  v.  Roylton,  7  Q.  B.  D.  438  (sales)  ;  Gray 
v.  Fowler,  8  Ex.  249  (vendor  and  purchaser). 


00.     VEEDER:  A  CENTURY  OF  JUDICATURE  787 

lawyers  and  non-lawyers,  of  his  age.  I  may  be  wrong,  but 
the  two  men  whom,  in  my  own  mind,  I  bracketed  together 
were  Lord  Westbury  and  Cardinal  Newman."  It  was  this 
rare  combination  of  thought  and  expression  which  particu- 
larly distinguished  him.  His  power  of  lucid  statement, 
which  was  accompanied  by  a  rare  capacity  for  marshaling 
a  multitude  of  facts  and  collateral  details  in  their  logical 
order,  arose  from  readiness  and  clearness  of  conception. 
"  Clearness  of  expression,"  he  said,  "  measures  the  strength 
or  vigor  of  conception.  If  you  have  really  grasped  a 
thought,  it  is  easy  enough  to  give  it  utterance."  His  men- 
tal bent  was  almost  wholly  judicial;  he  convinced  by  ap- 
peals to  sober  judgment  rather  than  to  considerations  of 
expedient  or  sentiment ;  and-  the  elevation  which  he  gave  to 
the  simplest  discussion  arose  from  his  habit  of  bringing  the 
driest  details  to  the  test  of  original  principles. 

Westbury's  most  conspicuous  defect  was  an  arrogant  con- 
sciousness of  intellectual  superiority,  manifesting  itself,  with 
utter  disregard  for  the  feelings  of  others,  in  fondness  for 
caustic  wit  and  rather  spinous  humor.  He  was  too  much 
in  the  habit  of  what  his  biographer  has  termed  thinking 
aloud,  without  regard  to  the  effect  which  the  expression  of 
his  thoughts  might  have  on  others.  His  deliberate  method 
of  setting  people  right  provoked  intense  irritation ;  when 
roused  by  pretentiousness  or  humbug,  his  sarcasm  fell  with 
blistering  effect.  In  fact  he  bids  fair  to  be  remembered  by 
the  public  at  large  merely  as  the  author  of  innumerable  sharp 
sayings.  He  took  a  characteristic  part  in  the  theological 
controversies  of  the  time;  baiting  the  bishops  in  the  House 
of  Lords  was  his  favorite  occupation.  By  his  judgments 
in  the  case  of  the  authors  of  "  Essays  and  Reviews  "  and 
the  Colenso  case,  he  was  said  to  have  "  dismissed  hell  with 
costs  and  taken  away  from  the  orthodox  members  of  the 
Church  of  England  their  last  hope  of  everlasting  damna- 
tion." His  description  of  a  synodical  judgment  as  "  a  well- 
lubricated  set  of  words,  a  sentence  so  oily  and  saponaceous 
that  no  one  could  grasp  it,"  has  never  been  forgotten.  The 
consequence  of  his  unfortunate  lack  of  restraint  was  that 
his  enemies  not  only  succeeded  in  blocking  the  great  scheme 


788  V.     BENCH   AND   BAR 

of  law  reform  which  seems  to  have  been  the  one  continuous 
purpose  of  his  life,  but  also  contrived  to  make  so  much  of 
a  case  of  official  delinquency  in  the  distribution  of  the 
patronage  of  his  office  that  Westbury  resigned  after  a  vote 
of  censure.  It  may  suffice  to  say  that  his  personal  honor 
was  in  no  way  involved.  Since  Westbury's  day  other  men, 
better  suited  by  temperament  for  the  patient  diplomacy  by 
which  alone  radical  legislative  action  is  attained,  have  car- 
ried on  the  work  of  law  reform  which  he  began ;  and  as  the 
outline  of  his  splendid  conception  is  gradually  filled  in  by 
accomplished  fact,  it  becomes  us  to  remember  him  for  his 
aspirations  as  well  as  for  his  actual  achievements. 

The  law  reports  contain  about  two  hundred  and  fifty  cases 
in  which  Lord  Westbury  formulated  an  opinion.  In  read- 
ing them,  one  is  struck  with  his  facility  in  stripping  cases 
of  complicated  and  bewildering  detail,  and  reducing  them 
to  simple,  intelligible  propositions.  Impatient  of  authority, 
he  sought  to  ground  his  conclusions  upon  elementary  prin- 
ciples. It  is  common  to  find  in  his  work  such  opening  state- 
ments as  these :  "  My  lords,  we  are  all  exceedingly  glad 
when,  in  a  collection  of  miserable  technicalities  such  as  these 
which  are  before  us  here,  we  can  find  our  way  to  something 
like  a  solid  and  reasonable  ground  of  decision  "  (5  E.  &  I. 
App.  25).  "  There  is  no  difficulty  at  all  in  the  matter,  and 
if  the  general  rules  of  law  were  more  steadily  kept  in  view 
it  would  be  unnecessary  to  range  up  and  down  a  variety 
of  decisions,  because  those  rules  would  afford  the  best  answer 
and  secure  the  removal  of  every  difficulty  "  (5  E.  &  I.  App. 
529).  His  skill  in  exposition  was  of  the  highest  order.  His 
statement  of  the  principles  of  extra-territorial  jurisdiction 
in  Cookney  v.  Anderson,  32  L.  J.,  Ch.  427,  is  a  good  illus- 
tration of  his  style  and  method.  Although  his  lack  of  re- 
spect for  authority  sometimes  led  him  to  go  somewhat  be- 
yond the  mark,  his  mental  acuteness  was  restrained,  in  the 
exercise  of  his  judicial  functions  at  least,  by  good  sense.1 


1  For  example,  in  Overend  v.  Gibbs,  5  E.  and  I.  App.  495,  he  offers 
the  following  sensible  reflection: 

"  I  think  it  would  be  a  very  fatal  error  in  the  verdict  of  any  court  of 
justice  to  attempt  to  measure  the  amount  of  prudence  that  ought  to  be 


00.     VEEDER:  A  CENTURY  OF  JUDIC4TURE   789 

His  substantial  contributions  to  the  law  deal  mostly  with 
topics  upon  which  there  was  a  conflict  of  opinion,  or  which 
fall  outside  the  ambit  of  well-settled  authority.  His  great 
opinion  in  the  case  of  Taylor  v .  Meads,  4  DeG.,  J.  &  S.  597, 
on  the  testamentary  capacity  of  married  women,  is  a  good 
illustration  of  his  remarkable  skill  in  settling  discussion  of 
a  complex  subject.  The  domain  of  what  has  been  called 
private  international  law  afforded  scope  for  his  peculiar 
powers.1  Trade-marks  and  patents  were  also  congenial  sub- 
jects.2 He  made  several  contributions  of  importance  to  the 
law  of  prescriptive  easements.3  Other  miscellaneous  deci- 
sions will  be  recognized  by  the  professional  reader  as  legal 
landmarks.4 

It  is  difficult  to  characterize  the  mind  and  career  of  Lord 
Cairns  (1868;  1874-80)  without  seeming  to  exaggerate. 
It  may  therefore  be  well  to  quote,  at  the  outset,  the  delib- 
erate opinion  of  his  life-long  professional  and  political  an- 
tagonist, Lord  Selborne.  Referring  to  Lord  Salisbury's 
statement  that  Cairns  "  had  an  eminence  not  often  granted  to 


exercised  by  the  amount  of  prudence  which  the  judge  himself  might 
think  under  similar  circumstances  he  should  have  exercised.  I  think  it 
extremely  likely  that  many  a  judge,  or  many  a  person  versed  by 'long 
experience  in  the  affairs  of  mankind  as  conducted  in  the  mercantile 
world,  will  know  that  there  is  a  great  deal  more  trust,  a  great  deal  more 
speculation,  and  a  great  deal  more  readiness  to  confide  in  the  probabili- 
ties of  things  with  regard  to  success  in  mercantile  transactions,  than 
there  is  on  the  part  of  those  whose  habits  of  life  are  entirely  of  a  dif- 
ferent character.  It  would  be  extremely  wrong  to  import  into  the  con- 
sideration of  the  case  of  a  person  acting  as  a  mercantile  agent,  in  the 
purchase  of  a  business  concern,  those  principles  of  extreme  caution 
which  might  dictate  the  course  of  one  who  is  not  at  all  inclined  to  invest 
his  property  in  any  ventures  of  such  a  hazardous  character." 

1  Udny  v.  Udny,  1  Sc.  &  Div.  App.  457 ;   Cockney  v.  Anderson,  32  L. 
J.  Ch.  427;   Ex  parte  Chavasse,  34  L.  J.,  Bank.  17;   Enohin  v.  Wylie,  10 
H.   L.  Cas.  1 ;    Bell  v.   Kennedy,  1  Sc.  &  Div.  App.   320,   and   Shaw  p. 
Gould,  3  E.  &  I.  App.  80. 

2  Leather  Cloth  Co.,  v.  Leather  Cloth  Co.,  33  L.  J.  Ch.  199;    McAn- 
drew  v.   Bassett,  33  L.  J.  Ch.  561;    Witherspoon  v.  Currie,  5  E.  &  I. 
App.  521;    Hills  ».  Evans,  31  L.  J.  Ch.  458;   Betts  v.  Menzies,  10  H.  L. 
Cas.  151. 

"Tapling  v.  Jones,  11  H.  L.  Cas.  303;  Suffield  v.  Brown,  33  L.  J.  Ch. 
249;  Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503. 

4  Holroyd  v.  Marshall,  10  H.  L.  Cas.  208;  Cooper  v.  Phibbs,  2  H.  L. 
Cas.  149;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  649; 
Blades  ».  Higgs,  11  H.  L.  Cas.  630;  Isenberg  v.  East  Indian  Estates 
Co.,  33  L.  J.,  Ch.  392;  Lister  v.  Pern-man,  5  E.  &  I.  App.  538;  Sack- 
ville  West  v.  Holmesdale,  5  E.  &  I.  App.  565. 


790  .       V.     BENCH    AND    BAR 

a  single  man,  in  that  he  was  equally  great  as  lawyer,  states- 
man and  legislator,"  Selborne  said :  "  Even  that  enumera- 
tion of  his  titles  to  greatness  fell  short  of  the  truth;  for 
he  was  also  a  great  orator,  and  a  man  exemplary  in  priva.te 
life.  It  would  be  difficult  to  name  any  chancellor  (except 
Lord  Hardwicke)  who  was  certainly  his  superior,  or  indeed 
in  all  respects  his  equal.  Lord  So'mers  was  a  greater  states- 
man, Lord  Lyndhurst  a  greater  orator,  Lord  Eldon  a  more 
profoundly  learned  lawyer;  but  the  degree  in  which  they 
severally  excelled  him  in  these  respects  was  less  than  that 
in  which  he  excelled  them  in  other  qualities,  more  necessary 
than  statecraft  or  eloquence  and  not  less  necessary  than 
learning  for  a  great  judge;  and  the  gifts  which  in  them 
shone  separately  were  in  him  combined.  Lord  Thurlow, 
Lord  Rosslyn  and  Lord  Westbury  had  not  less  ability ;  but 
he  was  more  of  a  statesman,  a  more  persuasive  orator  and 
on  the  whole  a  better  judge  than  any  of  them.  There  have 
been  chancellors,  such  as  Lord  Talbot,  Lord  Cranworth  and 
Lord  Hatherley,  whose  private  virtues  were  not  less  con- 
spicuous and  whose  public  reputation  was  not  less  honorable, 
yet  who  were  not,  like,  him,  as  fit  to  play  a  great  part  in 
political  as  in  judicial  affairs."  1  By  Jessel,  Benjamin,  and 
his  most  distinguished  contemporaries,  he  was  regarded  as 
the  ablest  lawyer  of  his  day.  It  may  be  said  at  the  outset 
that  his  high  reputation  derived  no  adventitious  support 
from  personal  affection.  He  was  never  popular.  His  man- 
ner was  austere,  cold  and  sternly  self-repressive.  This  was 
undoubtedly  due  in  a  large  measure  to  continual  ill  health. 
His  gloomy  religious  views  may  also  have  influenced  his 
temperament.  Religion,  indeed,  seems  to  have  enlisted  the 
deepest  feelings  of  his  nature.  It  was  with  him  the  para- 
mount consideration,  in  comparison  with  which,  he  once  said, 
all  else  —  honor,  reputation,  wealth,  recreation  —  were 
"  nothing,  absolutely  nothing."  A  stern  Protestant  in  his 
views  of  ecclesiastical  polity,  he  disliked  with  all  the  strength 
of  his  austere  nature  the  tolerance  of  modern  thought. 

The  most  obvious  characteristic  of  his  career  is  his  aston- 
ishing versatility.    At  the  outset  of  his  professional  labors 
1  Personal  and  Political  Memoirs,  pt  2,  vol.  1,  pp.  157,  158. 


80.     VEEDER:  A  CENTURY  OF  JUDICATURE  791 

his  constitutional  -diffidence  was  so  great  that  he  deemed 
himself  fitted  only  for  chamber  practice.  He  soon  gained 
confidence  in  his  powers,  however,  and  at  an  early  age  be- 
came the  acknowledged  leader  of  the  chancery  bar.  Al- 
though his  professional  labors  were  confined  almost  entirely 
to  equity  cases,  he  argued  many  Scotch  and  ecclesiastical 
appeals  with  marked  ability ;  and  on  the  rare  occasions  when 
he  appeared  before  a  jury  —  such  as  the  Windham  lunacy 
case,  and  the  Alexandra  case,  arising  out  of  our  Civil  War 
—  he  displayed,  as  if  by  intuition,  the  most  consummate 
powers  of  popular  advocacy.  In  public  life,  too,  he  dis- 
played a  capacity  for  statesmanship  which  few  great  law- 
yers have  possessed.  He  was  not  only  "  great  in  council," 
as  Disraeli  said,  but,  next  to  the  Prime  Minister  himself, 
he  was  the  ablest  orator  of  the  Conservative  party.  Almost 
alone  among  great  lawyers,  he  seems  to  have  had  a  strong 
apprehension  of  the  class  of  considerations  which  determine 
party  policy  and  influence  public  opinion.  Legal  distinc- 
tions, it  has  often  been  pointed  out,  are  so  specific  in  kind 
that  they  seem  to  incapacitate  ordinary  minds  for  the  appre- 
hension of  moral  and  political  distinctions.  Distinguished 
lawyers  in  public  life  are  apt  to  become  either  so  merged 
in  mere  party  advocacy  that  they  cease,  like  Westbury,  to 
exhibit  individual  character  and  conviction,  or,  like  Selborne, 
when  once  they  leave  the  firm  ground  of  legal  principle,  they 
lean  toward  extreme  views  on  either  side  from  sheer  want  of 
apprehension  of  the  intermediate  resting  places  of  political 
thought.  But  Cairns'  public  speeches  are  replete  with  inde- 
pendent political  thought  and  strong  personal  conviction, 
and  his  sagacity  is  as  keen  and  his  logic  as  close  on  subjects 
of  purely  political  interest  as  on  legal  topics.  In  manner, 
both  at  the  bar  and  in  public  life,  he  was  Scotch  rather  than 
Irish,  logical  rather  than  emotional.  His  great  speech  on 
the  Reform  Bill  of  1867  was  described  by  one  of  his  oppo- 
nents as  "  frozen  oratory ;  "  "  It  flows  like  the  water  from 
a  glacier ;  or  rather  it  does  not  flow  at  all,  for  though  Cairns 
never  hesitates  or  recalls  a  phrase,  he  can  scarcely  be  called 
a  fluent  speaker.  His  words  rather  drop  with  monotonous 
and  inexorable  precision  than  run  on  in  a  continuous  stream. 


792  V.    BENCH   AND   BAR 

The  several  stages  of  his  speech  are  like  steps  cut  out  of 
ice,  as  sharply  defined,  as  smooth  and  as  cold."  There  was 
a  studied  absence  of  passion,  and  an  entire  concentration  on 
thought,  clear  exposition  and  remorseless  logic.  Beneath 
his  cold  exterior,  however,  there  was  the  deepest  feeling. 
Occasionally,  when  he  was  deeply  moved,  this  suppressed 
fire  came  to  the  surface.  One  of  these  occasions  was  the 
disestablishment  of  the  Irish  Church,  which  aroused  the 
deepest  feelings  of  his  nature.  An  eye  witness  to  the  final 
debate  relates  how  "  the  Lord  Chancellor,  pale,  emaciated, 
evidently  very  ill,  but  possessed  by  a  spirit  which -no  phys- 
ical infirmities  could  overcome,  stood  at  the  side  of  the  wool- 
sack pouring  forth  for  hours  an  unbroken  stream  of  clear 
and  logical  eloquence  against  the  measure  before  the 
House."  1 

An  examination  of  Cairns's  judgments  is  apt,  on  first  view, 
to  be  somewhat  disappointing.  In  the  first  place,  ill  health 
constantly  interfered  with  his  work.  He  participated  in  the 
hearing  of  less  than  four  hundred  cases  during  his  whole 
judicial  career.  In  more  than  half  of  these  cases  he  did  not 
formulate  an  independent  opinion.  Moreover,  Cairns  sel- 
dom explained  the  process  by  which  his  mind  reached  a  re- 
sult. Yet  his  mind  was  severely  logical;  he  had  attained 
the  perfect  mental  discipline  which  enabled  him  to  follow 
without  reflecting  on  the  rule.  With  his  swift,  strong,  subtle 
instinct  for  the  truth,  he  was  able  to  disregard  the  slow,  syl- 

1  The  peroration  of  his  speech  on  the  English  humiliation  in  the  Trans- 
vaal has  often  been  admired  as  a  specimen  of  parliamentary  eloquence: 

"  I  wish  that  while  the  Transvaal  remains,  as  you  say  it  does,  under 
our  control,  the  British  flag  had  not  been  first  reversed  and  then  trailed 
in  insult  through  the  mud.  I  wish  that  the  moment  when  you  are  weak- 
ening our  empire  in  the  East  had  not  been  selected  for  dismembering 
our  empire  in  South  Africa.  These  are  the  aggravations  of  the  trans- 
action. You  have  used  no  pains  to  conceal  what  was  humbling,  and  a 
shame  which  was  real  you  have  made  burning.  But  the  transaction 
without  the  aggravation  is  bad  enough.  It  has  already  touched,  and 
will  every  day  touch  more  deeply,  the  heart  of  the  nation.  Other  re- 
verses we  have  had,  other  disasters;  but  a  reverse  is  not  dishonor,  and 
a  disaster  does  not  necessarily  imply  disgrace.  To  Her  Majesty's  gov- 
ernment we  owe  a  sensation  which  to  this  country  of  ours  is  new  and  is 
certainly  not  agreeable. 

'  In  all  the  ills  we  ever  bore, 
We  grieved,  we  sighed,  we  toiled,  we  wept; 
We  never  blushed  before.' " 


W.     VEEDER:  A   CENTURY  OF  JUDICATURE   793 

logistic  processes  along  which  ordinary  minds  move.  He 
made  no  display  of  learning,  like  Willes  and  Blackburn, 
though  his  learning  was  unquestioned.  He  exhausted  the 
argument  from  principle,  and  only  in  conclusion  illustrated 
it  by  reference  to  a  few  leading  cases.  His  solution  of  the 
great  case  of  Rylands  v.  Fletcher,  3  E.  &  I.  App.  330,  on 
the  "  duty  of  insuring  safety,"  is  a  typical  illustration  of 
his  method.  Ward  v.  Hobbs,  4  App.  Cas.  19,  is  one  of  the 
rare  instances  in  which  he  exposed  the  process  by  which  he 
reached  his  conclusion.  For  a  specimen  of  his  skill  in  ex- 
position reference  may  be  made  to  his  address  to  the  jury 
in  the  celebrated  Windham  lunacy  case:  "It  may  be  con- 
venient to  remind  you  what  the  precise  issue  is.  You  are 
to  decide  whether  Mr.  Windham  is  incapable  of  managing 
his  affairs  —  not  whether  he  is  of  unsound  mind,  but  whether 
he  is  incapable  of  managing  his  affairs  by  reason  of  un- 
soundness of  mind.  The  object  of  making  that  distinction 
is  plain  and  simple.  There  are  many  cases  in  which  a  man 
may  be  said  to  be  incapable  of  managing  his  affairs.  He 
may  be  incapable  by  reason  of  ignorance,  or  on  account  of 
inexperience  and  want  of  peculiar  skill,  or  because  of  a  pref- 
erence for  literary  or  other  pursuits  of  a  kind  utterly  un- 
connected with  the  management  of  property,  or  in  conse- 
quence of  a  ruinous  and  inveterate  habit  of  gambling.  Such 
a  person  may  justly  be  said,  in  a  certain  sense,  to  be  incapa- 
ble of  managing  his  affairs,  and,  indeed,  the  Roman  law 
made  no  distinction  between  unthrifts  and  idiots.  But  in 
England  a  man  cannot  be  deprived  of  his  personal  liberty 
or  his  property  on  the  ground  of  incapacity,  until  a  jury 
of  his  countrymen  are  satisfied,  first,  that  he  is  incapable  of 
managing  his  affairs,  and,  secondly,  that  his  incapacity 
arises  from  unsoundness  of  mind.  Moreover,  you  are  to  bear 
in  mind  that  the  presumption  is  in  favor  of  sanity,  and  that 
it  lies  upon  those  who  allege  unsoundness  to  make  out  and 
prove  their  case.  I  call  your  attention  to  the  peculiar  na- 
ture of  the  insanity  alleged  in  the  petition  against  Mr. 
Windham.  It  is  not  an  ordinary  case  of  insanity  accom- 
panied by  delusions  —  a  case  in  which  the  great  and  critical 
test  of  sanity  is  the  absence  or  presence  of  hallucinations 


794  V.     BENCH    AND    BAR 

—  but  a  case  of  imbecility  approaching  to  idiocy,  or  amount- 
ing to  unsoundness  of  mind.  In  a  case  of  insanity  accom- 
panied by  delusions,  the  mode  of  investigating  it,  so  as  to 
arrive  at  the  truth,  is  a  matter  of  great  difficulty  and  doubt ; 
but  in  a  case  of  imbecility,  where  there  is  either  no  mind 
at  all  or  next  to  none,  the  task  of  coming  to  a  right  or  just 
decision  is  comparatively  easy.  It  is  impossible  for  a  man 
who  is  said  to  have  only  a  limited  amount  of  mind,  or  none 
at  all,  to  assume  at  any  moment  or  for  any  purpose  a  greater 
amount  of  mind  than  he  really  possesses.  If  the  mind  is 
not  there,  or  only  there  in  a  certain  small  and  limited  quan- 
tity, no  desire  on  the  part  of  the  individual  to  show  a  greater 
amount  of  mind,  or  to  assume  the  appearance  of  a  greater 
amount  of  mind,  can  supply  him  with  that  which  nature  has 
denied  him.  Hence  when  a  man  is  charged  with  imbecility, 
if  it  can  be  shown  that  for  a  considerable  time  and  in  vari- 
ous situations  he  has  acted  like  a  natural  being,  any  acts  of 
folly  which  might  be  alleged  against  him  should  be  carefully, 
deliberately  and  keenly  investigated,  because  at  first  sight 
it  is  next  to  impossible  that  a  man  can  at  certain  times  as- 
sume a  mind  and  intelligence  which  are  wholly  absent." 

Although  a  scholar  of  the  highest  attainments,  Cairns' 
opinions  are  never  academic.  The  frugality  of  his  style  is 
in  marked  contrast  to  the  fertility  of  thought.  Of  words 
or  illustrations  or  expository  digressions,  he  is  sparing  to 
a  fault;  he  never  relaxes  the  tension  of  the  argument. 
These  characteristics  point  toward  the  most  conspicuous 
quality  of  his  work  —  lucidity.  The  most  complex  legal 
problem  seemed  to  present  no  difficulty  to  his  mind.  He 
disembarrassed  himself  of  details  and  grasped  principles, 
and  by  strict  logical  deduction  from  general  principles  about 
which  there  could  be  no  dispute,  he  not  only  settled  the  law, 
but  also  terminated  discussion.1  He  had,  moreover  —  and 
this  was  his  crowning  gift  —  that  cultured  imagination 
which  is  essential  to  the  highest  juridical  art.  Imagination, 
after  all,  is,  for  the  most  part,  simply  depth  and  breadth 

1 A  comparison  between  his  solution  of  the  case  of  Goodwin  v.  Rob- 
arts,  1  App.  Cas.  488,  with  Chief  Justice  Cockburn's  judgment  in  the 
lower  court  (10  Ex.  337)  will  illustrate  Mr  habit  of  seeking  ultimate 


00.     VEEDER:  A  CENTURY  OF  JUDICATURE   795 

of  insight;  and,  far  from  being  detrimental  to  judicial 
thought,  surely  no  quality  could  be  more  desirable  in  the 
administration  of  the  law  than  the  intellectual  and  imag- 
inative insight  which  goes  to  the  heart  of  things  and  ex- 
presses in  perfect  form  a  rule  for  future  guidance.  The 
luminous  effect  of  Cairns'  imagination  may  be  observed  to 
splendid  advantage  in  the  case  of  Gardner  v.  London,  etc., 
Ry.,  2  Ch.  App.  201,  on  the  vexed  question  of  the  relative 
rights  and  obligations  of  railway  companies  and  their  de- 
benture holders.  The  briefs  of  counsel  on  either  side  will 
indicate  the  doubt  and  conflict  of  opinion  in  which  the  sub- 
ject was  involved.  Cairns'  solution  of  the  problem  by  ref- 
erence to  a  going  concern  as  a  "  fruit-bearing  tree "  is 
highly  imaginative,  and  was  so  convincing  that  further  dis- 
cussion ceased.  In  the  vibration  case  of  Hammersmith  Ry. 
v.  Brand,  4  E.  &  I.  App.  215,  involving  the  right  to  recover 
for  damage  incident  to  authorized  acts,  he  failed  for  once 
to  convince  his  colleagues.  Probably  his  most  important 
contributions  to  the  law  lie  within  the  domain  of  company 
affairs.  But  they  are  scarcely  superior  to  his  judgments 
in  cases  of  contract.  One  of  his  most  original  contributions 
to  jurisprudence  is  his  series  of  decisions  as  arbitrator  in 
the  complicated  affairs  of  the  Albert  Insurance  Company. 
This  company  was  the  final  result  of  various  financial  trans- 
formations, and  many  of  the  claims  against  it  turned  upon 
the  doctrine  of  novation.  Cairns  took  an  advanced  position 
with  respect  to  the  assent  of  the  debtor  to  novation,  justify- 
ing his  position  by  considerations  drawn  from  the  rapidly 
changing  nature  of  commercial  transactions  in  the  present 
day.1  As  a  law  reformer  he  was  the  worthy  successor  of 

1  See  Cairns'  Decisions  in  the  Albert  Insurance  Company  Arbitration, 
1870-'72,  particularly  Kennedy's  case,  p.  5. 

Following  is  a  full  list  of  Cairns'  most  important  opinions:  Company 
law  —  Erlanger  v.  Phosphate  Co.,  3  App.  Cas.  1234;  Ashbury  Ry.  Co.  t>. 
Ritchie,  T  E.  &  I.  App.  Cas.  663;  Peek  v.  Gurney,  6-402;  Reese  Mining 
Co.,  v.  Smith,  4-77;  Houldsworth  v.  Evans,  3-263;  In  re  Reese  Silver 
Mining  Co.,  2-604;  Gardner  v.  London,  C.  &  D.  Ry.,  2  Ch.  App.  201; 
Hoole  v.  Gi.  Western  Ry.  3-262;  Princess  of  Reusse  ».  Bos.  5  E.  &  I. 
App.  199;  Evans  v.  Smallcombe,  3-249;  Gillespie  v.  Glasgow  Bank,  4 
App.  Cas.  636. 

Contracts  —  Cundy  v.  Lindsay,  3  App.  Cas.  463;  Rossiter  v.  Miller,  3- 
1129;  Hussey  v,  Horne-Payne,  4-316;  Brogden  c.  Metropolitan  Ry.  Co., 


796  V.     BENCH    AND    BAR 

Westbury.  Although  the  Judicature  Act  of  1873  was 
passed  under  Lord  Selborne's  chancellorship,  public  opinion 
had  been  aroused  and  the  main  outlines  of  the  reform  sug- 
gested by  Cairns,  who  was  chairman  of  the  first  Judicature 
Commission  of  1866.  It  was  he  who  influenced  the  modi- 
fication of  the  act  so  as  to  retain  the  final  appellate  juris- 
diction of  the  House  of  Lords.1 

Hatherley  (1868-'72)  sustained  on  the  woolsack  the  repu- 
tation which  he  had  made  as  vice  chancellor.  He  was  an 
accurate  and  sound  judge,  although  somewhat  overshadowed 
by  his  distinguished  contemporaries.  He  thought  so  quickly 
and  expressed  his  opinion  so  readily  (he  always  delivered  oral 
judgments)  that  his  opinions  lacked  form.  Lord  Campbell, 
on  appeal,  once  commented  strongly  on  the  "  prodigious 

2-672;  Rhodes  v.  Forwood,  1-261;  Thorn  v.  Mayor  of  London,  1-126; 
Lakeman  v.  Mountstephen,  7  E.  &  I.  App.  20. 

Torts  —  Metropolitan  Ry.  Co.  v.  Jackson,  3  App.  Cas.  196,  Dawkins  v. 
Rokeby,  7  E.  &  I.  App.  753;  Bridges  ».  No.  Condon  Ry.,  7-537;  Ham- 
mersmith Ry.  v.  Brand,  4-215;  Rylands  v.  Fletcher,  3-330;  Prudential 
Ins.  Co.  v.  Knott  10  Ch.  App.  144. 

Wills  —  Fulton  v.  Andrew,  7  E.  &  I.  App.  456 ;  Omahoney  v.  Bur- 
dett,  7-392;  Hill  v.  Crook,  6-283;  Harrington  v.  Harrington,  5-103; 
Sackville  West  v.  Holmesdale,  4-571 ;  Bowen  v.  Lewis,  9  App.  Cas.  904 ; 
Singleton  v.  Tomlinson,  3-413;  Thomson  v.  Eastwood,  2-227. 

Mercantile  Law  —  Bowes  v.  Shand,  2  App.  Cas.  455 ;  Goodwin  v.  Rob- 
erts, 1-488;  Ward  v.  Hqbbs,  4-19;  Steel  v.  State  Steamship  Co.,  3-75 ;  Vyse 
v.  Foster,  7  E.  &  I.  App.  728;  Morgan  v.  Laixviere,  7-429;  Shots- 
man  «.  Ry.  Co.  2  Ch.  App.  332;  In  re  Agra  &  Masterman's  Ban!:, 
2-391. 

Miscellaneous  —  Lyon  v.  Fishmonger's  Co.,  1  App.  Cas.  670  (riparian 
rights)  ;  Swindon  Waterworks  Co.  v.  Nav.  Co.,  7  E.  &  I.  App.  701  (do.)  ; 
Kendall  v.  Hamilton,  4  A.  C.  512  (joint  and  several  liability) ;  Doherty 
v.  Allman,  3-716  (injunction);  Singer  Mfg.  Co.  v.  Wilson,  3-381  (trade 
mark);  De  Thoren  v.  Atty.  Gen.,  1-688  (Scotch  marriage);  Clark  v. 
Adie,  2-317  (patent);  Harrison  v.  Anderson  Foundry  Co.,  1-575  (do.); 
Corser  v.  Cartwright,  7  E.  &  I.  App.  734  (estate) ;  Nickalls  v.  Merry, 
7-538  (broker) ;  Shropshire  etc.  Co.,  v.  Queen,  7-504  (equitable  mort- 
gage) ;  Beattie  v.  Lord  Ebury,  7-108;  Lamaire  v.  Dixon,  6-474  (specific 
performance) ;  Ferguson  v.  Wilson,  Ch.  App.  77  (do.) ;  Maxwell  v. 
Hogg,  2-307  (copyright);  United  States  v.  Wagner,  2-582  (foreign 
state  as  plaintiff);  Patch  v.  Ward,  3-203  (fraud);  Lloyd  v.  Banks, 
3-488  (notice) ;  Parker  v.  McKenna,  10-114  (trustees) ;  Wilson  v.  Merry, 
1  Sc.  &  Div.  App.  328  (fellow  servant) ;  Redsdale  v.  Clifton,  2  P.  D. 
276;  Attwood  ».  Maude,  3  Ch.  App.  369;  Gisborne  v.  Gisborne,  2  App. 
Cas.  300. 

'Among  his  other  legislative  achievements  are  the  Conveyancing  Act, 
the  Vendors'  and  Purchasers'  Act,  and  the  Registry  Act.  The  only 
statute  which  bore  his  name,  however,  was  the  act  enabling  the  Chan- 
cery Courts  to  give  damages  in  lieu  of  specific  performance  or  injunc- 
tion. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  797 

length  "  and  slipshod  style  of  his  judgments.  He  was  ami- 
able and  exceedingly  religious.  "  The  monotony  of  his 
character,"  said  Westbury,  "  was  unrelieved  by  a  single 
fault."  ' 

Sir  John  Romilly  (1851-'73)  presided  over  the  Rolls 
Court  during  this  period,  when  the  work 'of  the  court  was 
rapidly  increasing.  His  numerous  decisions  display  indus- 
try rather  than  breadth  and  grasp.  His  haste  in  disposing 
of  cases  led  him  sometimes  to  decide  without  sufficiently  con- 
sidering the  principles  involved  and  the  precedents  by  which 
they  were  governed,  and  he  was  often  reversed  on  appeal. 
Vice  chancellors  of  various  degrees  of  ability  served  during 
this  period.  Upon  the  promotion  of  Knight-Bruce  in  1851, 
and  of  Turner  in  1853,  to  the  Court  of  Appeals  in  Chan- 
cery, and  of  Rolfe,  in  1851  to  the  woolsack,  the  office  was 
held  during  the  next  fifteen  years  by  Kindersley  (1851 -'66), 
Stuart  (1852-'71)  and  Page- Wood  (1853-'68).  Kinders- 
ley was  a  sound  equity  lawyer,  whose  decisions  were  seldom 
reversed.  His  opinions  are,  as  a  rule,  based  upon  broad 
principles,  and  bear  the  impress  of  a  superior  mind.  Stuart 
was  the  weakest  of  the  later  vice  chancellors,  and  was  gen- 
erally reversed  on  appeal.  A  witty  barrister  once  placed 
an  appeal  from  his  decision  on  the  calendar  of  motions  of 
course.  Page-Wood  was  one  of  the  most  competent  and 
satisfactory  judges  holding  this  office.  It  was  as  vice 
chancellor  that  he  laid  the  basis  of  the  reputation  in  equity 
which  led  to  his  appointment  as  chancellor.  The  principal 
vice  chancellors  in  later  times  were  Malins  (1866-'81),  and 
Bacon  (1870-'86).  Gifford  (1868-'69)  and  James  (1869- 
'70)  spent  a  brief  period  in  this  court  on  their  way  to  the 
Court  of  Appeal,  and  Hall  (1873-'82)  was  not  particularly 
distinguished.  Malins,  in  spite  of  judicial  peculiarities,  was  a 

1Castrique  v.  Imrie,  4  E.  &.  I.  App.  414;  Barber  v.  Meyerstein,  4  do. 
317;  Aister  v.  Ferryman,  4  do.  521;  Knox  v.  Gye,  5  do.  656;  Daniel  v. 
Metropolitan  Ry.,  5  do.  49;  Overend  v.  Gurney,  5  do.  480;  Rankin  r. 
Potter,  6  do.  83;  Bain  v.  Fothergill,  7  do.  170;  6rr  Ewing  v.  Colquhoun, 
2  App.  Cas.  839;  Thorn  v.  Mayor  of  London,  1  do.  120;  Rhodes  v.  For- 
wood,  1  do.  256;  Bowes  v.  Shand,  2  do.  455;  Brogden  v.  Metropolitan 
Ry.,  2  do.  666;  Rossiter  v.  Miller,  3  do.  1124;  Kendall  v.  Hamilton,  4 
do.  504;  Sturla  v.  Freocia,  5  do.  623;  Harrod  v.  Harrod,  1  K.  &  J.  4; 
Reade  v.  Lacy,  1  J.  &  H.  524. 


798  F.     BENCH   AND   BAR 

competent  equity  lawyer,  and  the  reports  contain  some  excel- 
lent expositions  by  him  of  various  branches  of  real  property 
law.  Bacon,  the  last  of  the  vice  chancellors,  was  a 'man  of 
varied  accomplishments,  not  the  least  of  which  was  the  lit- 
erary skill  which  makes  his  opinions  such  entertaining  read- 
ing. 

(c)  Probate,  Divorce  and  Admiralty  Courts 

The  outcry  against  the  ecclesiastical  administration  of 
probate  and  matrimonial  affairs  at  length  became  too  for- 
midable to  be  resisted.  The  inefficiency  of  most  of  the 
judges,  the  variations  of  practice  and  procedure,  the  ex- 
pense, the  delay,  the  frequently  inconsistent  and  mistaken 
views  of  law  and  of  fact  adopted  by  the  different  authori- 
ties, the  anachronism  of  a  system  which  permitted  civil 
rights  to  be  decided  by  judges  neither  appointed  by  nor 
responsible  to  the  Crown,  called  loudly  for  reform.  The 
humorous  absurdity  of  many  of  the  ancient  abuses  have  been 
preserved  in  lasting  caricature  by  Dickens  in  "  David  Cop- 
perfield."  The  practical  objection  to  the  jurisdiction  was 
that,  in  the  absence  of  its  power  to  bind  the  heir  in  relation  to 
land,  there  might  be  a  decision  one  way  in  the  ecclesiastical 
courts  as  to  personal  property,  and  another  at  common  law 
as  to  real  estate,  arising  out  of  the  same  document.  It  seems 
incredible  that  such  a  state  of  affairs  could  have  lasted  for 
centuries. 

With  respect  to  matrimonial  affairs  the  conditions  were 
quite  as  unsatisfactory.  The  abuses  of  the  procedure  of  the 
ecclesiastical  courts  had  affected  the  trial  of  these  causes  to 
such  an  extent  that  redress  was  practically  denied  to  persons 
of  moderate  means.  To  obtain  an  absolute  divorce  resort  had 
to  be  made  to  Parliament,  and  the  cost  of  carrying  a  bill 
through  both  Houses  was  practically  prohibitive.  Justice 
Maule  brought  out  the  incongruities  of  the  law  with  charac- 
teristic irony  in  passing  sentence  in  a  bigamy  case.  ".  I  will 
tell  you,"  he  said,  addressing  the  prisoner,  "  what  you  ought 
to  have  done  under  the  circumstances,  and  if  you  say  you  did 
not  know,  I  must  tell  you  that  the  law  conclusively  presumes 


00.     VEEDER:  A  CENTURY  OF  JUDICATURE  799 

that  you  did.  You  should  have  instructed  your  attorney  to 
bring  an  action  against  the  seducer  of  your  wife  for  damages. 
That  would  have  cost  you  about  £100.  Having  proceeded 
thus  far,  you  should  have  employed  a  proctor  and  instituted 
a  suit  in  the  ecclesiastical  courts  for  a  divorce  a  mensa  et 
thoro.  That  would  have  cost  you  £200  or  £300  more.  When 
you  had  obtained  a  divorce  a  mensa  et  thoro  you  had  only  to 
obtain  a  private  act  of  Parliament  for  a  divorce  a  vinculo 
matrimonii.  This  bill  might  possibly  have  been  opposed  in  all 
its  stages  in  both  Houses  of  Parliament,  and  altogether  these 
proceedings  would  have  cost  you  £1,000.  You  will  probably 
tell  me  that  you  never  had  a  tenth  of  that  sum,  but  that 
makes  no  difference.  Sitting  here  as  an  English  judge,  it  is 
my  duty  to  tell  you  that  this  is  not  a  country  where  there  is 
one  law  for  the  rich  and  another  for  the  poor.  You  will  be 
imprisoned  for  one  day." 

Finally,  in  1857,  this  anomalous  condition  of  affairs  came 
to  an  end.  The  ecclesiastical  courts  were  by  statute  divested 
of  all  power  to  entertain  suits  relating  to  probate  of  wills  and 
grants  of  administration,  to  declare  the  validity  of  marriages, 
and  pronounce  divorces  a  mensa  et  thoro,  and  such  jurisdic- 
tion was  conferred  upon  a  new  court  of  common  law,  which 
was  to  sit  in  Westminster  Hall  in  two  divisions,  called  respect- 
ively the  Court  of  Probate  and  the  Court  for  Divorce  and 
Matrimonial  Causes.  The  success  of  the  change  depended 
largely  upon  the  judge  who  should  first  exercise  the  new 
jurisdiction.  Fortunately,  Cresswell  was  transferred  from 
the  Common  Pleas.  He  was  a  strong,  able  and  experienced 
judge,  and  a  man  of  the  world,  and  justified  every  reasonable 
expectation.  Under  his  guidance  the  procedure  of  the  court 
was  adapted  to  modern  ideas,  witnesses  were  examined  viva 
voce  in  open  court,  a  concise  form  of  pleading  was  introduced, 
and  parties  could,  upon  application,  have  any  disputed  matter 
of  fact  tried  by  a  jury.  The  reports  of  Swabey  and  Tris- 
tram, which  contain  his  clear  and  concise  opinions  and 
charges  to  juries,  are  monuments  of  learning  and  common 
sense;  and  so  skilfully,  and  with  such  foresight,  were  the 
modern  foundations  t>f  this  jurisdiction  laid  that  his  judg- 


800  V.     BENCH    AND    BAR 

ment  is  said  to  have  been  only  once  reversed.1  Wilde,  an  in- 
dustrious and  painstaking  judge,  who  is  best  remembered 
by  his  subsequent  title  as  a  legal  peer,  Lord  Penzance,  suc- 
ceeded Cresswell  in  1863,  and  in  turn  gave  way  to  Hannen 
in  1872,  on  the  eve  of  the  Judicature  Act. 

Lushington  continued  his  distinguished  labors  in  admiralty 
and  ecclesiastical  affairs  until  1867,  when  he  was  succeeded 
by  Phillimore  (1867-83).  Through  his  voluminous  writings 
and  his  work  on  the  bench,  Phillimore  attained  great  distinc- 
tion. A  new  practice  and  a  rapidly  increasing  volume  of 
litigation  gave  rise  to  novel  and  intricate  problems.  His 
elaborate  opinions  are  replete  with  historical  knowledge, 
and  are  always  luminously  expressed.  In  1875,  under  the 
Judicature  Act,  he  became  a  member  of  the  Probate,  Divorce 
and  Admiralty  Division  of  the  High  Court.2 

(d)  Court  of  Appeal  in  Chancery 

The  Court  of  Appeal  in  Chancery,  which  was  established  in 
1851,  was  throughout  its  brief  history  one  of  the  most  satis- 
factory courts  that  ever  administered  English  law.  The 
original  lords  justices  were  Knight-Bruce  (1851-66),  and 
Rolfe  (1851-52).  Rolfe  was  soon  made  chancellor,  and  Tur- 
ner (1853-67)  succeeded  him.  The  court  for  fifteen  years 
consisted  of  Knight-Bruce  and  Turner  —  an  ideal  court, 
animated  by  profound  knowledge  of  law,  and  marked  aptitude 
in  its  successful  application  to  new  conditions.  Turner  was 
on  all  occasions  courageous  in  expanding  the  remedial  powers 
of  the  court  to  meet  modern  developments ;  and  so  anxious 

'Hope  v.  Hope,  1  Sw.  &  Tr.  94;  Keats  v.  Keats,  1-346;  Mette  v. 
Mette,  1-416;  Tallemache  v.  Tallemache,  1-561;  Tompkins  v.  Tompkins, 
1-168;  Ward  v.  Ward,  1-185;  Egerton  v.  Brownlow,  4  H.  L.  1 ;  Sutton 
v.  Sadler;  Coxhead  w.  Richards,  2  C.  B.  569. 

»  Some  of  his  notable  admiralty  cases  are:  The  Charkieh,  4  Adm.  & 
Ecc.  50;  The  Tentonia,  3  do.  394;  The  Halley,  2  do.  3;  The  Circassian; 
The  Constitution;  The  Parlement  Beige,  5  P.  D.  197;  The  City  of 
Mecca,  5  do.  28;  The  Macleod,  5  do.  254;  R.  v.  Keyn,  2  Ex.  D.  63. 

In  probate  and  matrimonial  affairs  see  Cheese  v.  Lovejoy,  2  P.  D. 
25;  Sottomayer  v.  De  Barros,  49  L.  J.  P.  1;  Baker  ».  Baker,  5  P.  D. 

His  most  remarkable  ecclesiastical  judgment  is  Martin  v.  Mackonochie, 
2  Adm.  &  Ecc.  116.  Others  of  importance  are  th*  well-known  cases  of  El- 
phinstone  v.  Purchas,  Sheppard  v.  Bennett,  Boyd  v.  Phillipotts,  Jen- 
kins v.  Cook,  and  the  Colenso  case. 


W.     VEEDER:  A   CENTURY  OF  JUDICATURE  801 

was  Knight-Bruce  to  shake  off  the  trammels  of  technical  pro- 
cedure when  they  interfered  with  what  he  conceived  to  be  the 
justice  of  the  case,  that  in  some  of  his  decisions  as  vice 
chancellor  (generally  overruled  by  Cottenham)  he  anticipated 
reforms  which  shortly  followed.  One  of  Knight-Bruce's 
most  prominent  characteristics  was  his  fastidious  English ; 
and  a  certain  irrepressible  humor  pervaded  his  gravest  judg- 
ments. So  vigorous  and  original  was  his  mind,  so  animated 
and  epigrammatic  his  style,  so  constant  his  flow  of  humor, 
that  his  opinions  are  veritable  oases  in  the  dreary  wastes  of 
the  chancery  reports.  These  sentences  are  taken  at  random : 
"  Men  may  be  honest  without  being  lawyers,  and  there  are 
doings  from  which  instinct  without  learning  may  make  them 
recoil."  "  Some  breaches  of  good  manners  are  breaches  of 
law  also."  "  The  decree  in  this  case  is  a  matter  of  course 
unless  the  court  and  the  laws  of  this  country  are  to  be  recon- 
structed with  a  view  to  this  particular  case."  See,  also,  his 
highly  characteristic  opinion  in  Thomas  v.  Roberts,  where  the 
father  of  a  child  had  joined  a  new  sect  and  had  gone  to  live 
in  "  a  sort  of  spiritual  boarding-house,"  to  which,  as  a  home 
for  the  child,  Knight-Bruce  said  he  would  prefer  a  "  camp  of 
gypsies."  The  contrast  between  Knight-Bruce  and  Turner 
in  their  habits  of  thought  and  modes  of  expression  —  the 
vivacity  and  dry  humor  of  the  one  and  the  steadiness  and 
gravity  of  the  other  —  blended  admirably  in  result.2 

1  Thomas  v.  Roberts,  3  De  G.  &  Sm.  758;  Walter  w.  Selfe,  4  do.  315; 
Prince  Albert  v.  Strange,  2  do.  652;  Re  Cumming,  1  De  G.,  M.  &  G. 
559;  Kekewich  v.  Manning,  1  do.  176;  Burgess  v.  Burgess,  3  do.  896; 
Briggs  v.  Penny,  3  De  G.,  M.  &  S.  525. 

*  A  fine  illustration  of  their  benevolent  wisdom  is  their  disposition  of 
the  case  of  Stourton  v.  Stourton,  8  D.  M.  &  G.  760,  where  it  was  sought 
to  interfere  with  the  education  of  a  child  who  was  being  reared  by  his 
guardians  in  a  different  faith  from  that  professed  by  the  boy's  father. 
The  judges  had  an  interview  with  the  child,  and  Lord  Justice  Knight- 
Bruce  expressed  the  opinion  that  "  the  Protestant  seed  sown  in  his 
mind  has  taken  such  hold  that  if  we  are  to  suppose  it  to  contain  tares 
they  cannot  be  gathered  up  without  great  danger  of  rooting  up  also  the 
wheat  with  them.  Upon  much  consideration,  I  am  of  the  opinion  that 
the  child's  tranquillity  and  health,  his  temporal  happiness  and,  if  that 
can  exist  apart  from  his  spiritual  welfare,  his  spiritual  welfare  also,  are 
too  likely  now  to  suffer  importantly  from  an  endeavor  at  effacing  his 
Protestant  impressions  not  to  render  any  such  attempt  unsafe  and  im- 
proper." And  Lord  Justice  Turner  sagely  adds,  in  answer  to  the  argu- 
ment that  the  child  was  too  young  to  have  formed  fixed  opinions:  "  May 
it  not  be  that  the  impressions  which  have  been  formed  might  lead  to  the 


802  V.    BENCH   AND   BAR 

Several  distinguished  chancery  lawyers  sat  in  this  court 
for  brief  periods.  Cairns  (1866-68)  and  Page-Wood 
(1868)  were  elevated  to  the  woolsack,  and  Rolt  (1868-69), 
Selwyn  (1868-69)  and  Gifford  (1869-70)  died  in  office. 
During  his  brief  service  as  lord  justice,  Cairns  justified  the 
expectations  raised  by  his  distinguished  career  at  the  bar. 
He  began  in  this  court  the  splendid  service  which,  continued 
in  a  higher  tribunal,  placed  him  in  the  front  rank  of  English 
judges.  In  1870  the  unity  of  the  court  was  again  restored 
under  James  (1870-81)  and  Mellish  (1870-77).  James  was 
a  most  eminent  judge,  exceptionally  learned,  and  gifted  with 
rare  power  in  the  formulation  of  principles.  Cairns  said  of 
him  that  he  had  a  no  less  admirable  share  of  common  sense 
than  of  law.  In  quoting  his  own  decisions  he  would  humor- 
ously add,  "  which  is  an  authority  though  I  joined  in  it." 
His  comprehension  of  a  case  was  rapid  and  masterly,  and 
his  memory  marvelous.  Bramwell  said  of  him  that  "  he 
possessed  every  quality  and  accomplishment  that  a  judge 
needed.  He  had  a  very  great  intellect,  at  once  keen  and  pro- 
found. He  was  a  consummate  lawyer,  thoroughly  imbued 
with  legal  principles.  He  was  a  man  of  vast  experience,  not 
merely  in  the  law,  but  in  those  things  which  make  a  man  what 
is  commonly  called  a  man  of  the  world,  fitted  to  deal  with  the 
affairs  of  the  world.  He  had  but  one  desire  when  he  took  his 
seat  upon  the  bench,  and  that  is,  that  justice  should  be  done 
according  to  right.  It  was  said  of  him,  and  truly,  that  he  was 
rapid  in  the  formation  of  his  opinions  and  confident  in  the 
expression  of  them,  and  so  he  was,  and  so  a  man  of  his  ability 
had  a  right  to  be;  but  I  can  say  this  of  him,  that  a  more 
candid  man  never  lived,  nor  one  more  ready  to  renounce  an 
opinion,  though  he  had  given  expression  to  it  in  the  most 
confident  way,  if  he  thought  it  was  wrong."  .  His  most  sub- 
stantial contributions  to  the  law  were  in  the  domain  of 
company,  bankruptcy  and  patent  law.1 

instruction  which  would  be  given  being  received  with  carelessness  or  in- 
difference, or,  which  would  certainly  not  be  less  dangerous  or  less  de- 
structive to  the  character  of  the  boy,  with  affected  acquiescence?" 

1  Harvey  v.  Farnie,  6  P.  D.  35;  Niboyet  «.  Niboyet,  4  do.  1;  Mas- 
sam  ».  Cattle  Food  Co.,  14  Ch.  D.  748;  'in  re  Campden's  Charities,  18 
do.  310;  New  Sombrero  Co.  v.  Erlanger,  5  do.  73;  Smith  v.  Anderson, 


$0.     VEEDER:  A  CENTURY  OF  JUDICATURE  803 

Mellish  was  considered  by  many  eminent  judges  the  ablest 
advocate  of  his  time  before  a  court  in  bane.  Lord  Selborne 
said  of  him  that  "  as  an  advocate  he  was  distinguished  above 
all  other  men  whom  I  remember  at  the  bar  by  the  candor  of  his 
arguments  and  by  the  decision  with  which  he  threw  aside 
everything  which  did  not  seem  to  him  relevant  to  the  case 
and  deserving  of  serious  consideration  by  the  court  which  he 
was  addressing."  Mellish  belonged  to  the  common  law  bar, 
but  his  mastery  of  the  principles  of  jurisprudence  and  the 
judicial  quality  of  his  intellect  qualified  him  to  sit  in  any 
court.  He  came  to  the  bench  with  an  impaired  constitution, 
which  limited  his  work  both  in  quality  and  in  extent ;  but  his 
subtle  mind,  stored  with  the  learning  of  the  common  law,  in 
combination  with  James'  profound  knowledge  of  equity,  made 
a  most  satisfactory  court  of  appeal,  and  justified  the  subse- 
quent establishment  of  a  single  court  of  appeal  in  law  and 
equity.1 

(e)   The  House  of  Lords  and  the  Privy  Council 

The  ultimate  reorganization  of  the  House  of  Lords  as  an 
appellate  tribunal  owes  much  to  Lord  Westbury.  As  the 
leader  of  the  chancery  bar  and  a  law  officer  of  the  govern- 
ment, it  was  his  caustic  wit  that  concentrated  attention  upon 
the  defects  of  the  existing  system  and  overcame  the  inertia  of 
public  sentiment;  and  subsequently,  as  lord  chancellor,  it 
was  he  who  brought  to  the  discharge  of  his  judicial  functions 
the  commanding  ability  which  led  the  way  to  better  things.2 

15  do.  247;  Re  Goodman's  Trusts,  44  L.  T.  527;  Wimbleton  Conser- 
vators v.  Dixon,  1  Ch.  D.  362;  Pike  v.  Fitzgibbon,  14  do.  837;  In  re 
Agar  Ellis,  10  do.  49;  Re  Canadian  Oil  Works,  lO  Ch.  App.  599; 
Barnes  v.  Addy,  9  Ch.  244;  Day  v.  Brownrigg,  10  Ch.  D.  294;  Johns 
v.  James,  8  do.  744 ;  Macdonald  v.  Irvine,  8  do.  101 ;  Rogers  v.  Ing- 
ham,  3  do.  351 ;  Nitro  Phosphate  Co.  v.  London,  etc.,  Docks,  9  do.  503. 
'Nugent  v.  Smith,  1  C.  P.  D.  423;  Nichols  v.  Marsland,  2  Ex.  D.  1; 
Aynsley  v.  Glover,  10  Ch.  283;  Hext  v.  Gill,  7  do.  712;  Crook  v.  Hill,  6 
do.  311;  Lindsay  v.  Cundy,  2  Q.  B.  D.  96;  Dickinson  v.  Dodds,  2  Ch.  D. 
463;  Wimbleton  Conservators  v.  Dixon,  1  Ch.  D.  362;  Rogers  v.  Ing- 
ham,  3  do.  351;  Re  South  Wales,  etc.,  Co.,  2  do.  763;  Hopkins  v.  Great 
Northern  Ry.  Co.,  2  Q.  B.  D.  228. 

*  His  various  arguments  in  answer  to  the  supporters  of  the  old  order 
of  things  afford  fine  specimens  of  his  powers.  For  instance,  in  reply 
to  the  contention  that  judgments  of  the  highest  authority  had  been  ren- 
dered in  the  House  by  the  chancellor  alone,  he  said:  "If  there  be  a  sin- 


804  V.    BENCH   AND   BAR 

It  was  finally  determined  to  reinforce  and  infuse  adequate 
ability  in  the  House  by  the  creation  of  life  peers.  The  plan 
itself  was  admirable,  but  the  elevation  of  Baron  Parke  as 
Lord  Wensleydale,  in  pursuance  of  the  plan,  was  not  calcu- 
lated to  further  liberal  views.  Wensleydale  came  to  the  House 
of  Lords  after  his  long  domination  in  the  common  law  courts 
—  and,  it  may  be  added,  just  as  his  domination  ceased.  The 
Common  Law  Procedure  Act  seemed  to  him  a  desecration  of 
the  sacred  system  of  special  pleading,  and  led  to  his  retire- 
ment from  the  Exchequer.  The  atmosphere  of  the  House 
during  his  twelve  years'  service  was  not  congenial  to  his  pe- 
culiar powers.  Lord  Campbell,  whose  unquestioned  learning 
was  his  servant,  not  his  master,  combated  here,  as  he  had  in 
the  courts  below,  the  narrow  technicalities  within  which  Wens- 
leydale sought  to  confine  the  common  law.  Then  the  prepon- 
derance of  equity  lawyers,  due  to  the  rapid  succession  of  chan- 
cellors, was  little  calculated  to  lend  support  to  his  general 
views.  A  far  more  accomplished  lawyer  was  added  to  the 
court  in  1858  in  the  person  of  Lord  Kingsdown,  after  his 
brilliant  services  in  the  Privy  Council.  From  the  chancellor- 
ship of  Westbury  (1861-65)  a  new  period  may  be  said  to 
begin.  Himself  one  of  the  ablest  lawyers  who  ever  held  the 
seals,  Westbury  had  the  assistance  of  four  ex-chancellors 
and  two  legal  peers.  The  chancery  element  now  predomi- 
nated, and  the  eminent  ability  of  the  succeeding  chancellors, 
Cairns,  Hatherley  and  Selborne,  maintained  this  ascendancy 
for  the  remainder  of  the  period.  In  1867  the  court  was 
further  strengthened  by  the  addition  of  a  distinguished  Scotch 
lawyer,  Lord  Colonsay.  In  1869  Sir  James  Wilde  was  also 

gle  judge  who,  by  the  common  consent  of  mankind,  embodies  the  highest 
qualities  of  a  judge,  then  the  decisions  of  that  individual,  being  uniform, 
certain,  definite  and  clear,  would  be  of  the  highest  possible  value;  pre- 
cisely as  if  you  had  an  arbitrary  government,  with  absolute  authority 
vested  in  a  man  of  the  highest  possible  moral  and  intellectual  perfec- 
tions, one  would  desire  to  live  under  that  government  rather  than  any 
other.  But  it  is  so  difficult  to  obtain  such  a  man,  and  still  more  a  suc- 
cession of  such  men,  that  it  is  impossible,  particularly  in  the  case  of  a 
tribunal  which  has  causes  brought  before  it  from  all  quarters  of  the 
globe,  involving  all  possible  questions,  to  suppose  that  one  individual 
will  at  all  times  be  equal  to  the  satisfactory  determination  of  such  a 
vast  and  multitudinous  assembly  of  subjects;  therefore  it  is  that  we  de- 
sire a  greater  number  of  minds  than  one,  in  order  that  some  may  supply 
what  is  wanting  in  others." 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  805 

raised  to  the  peerage  as  Lord  Penzance.  The  court  now,  for 
the  first  time,  gave  satisfaction,  particularly  in  equity.  The 
reports  of  its  decisions,  as  contained  in  the  last  volumes  of 
Clark's  House  of  Lords  Cases,  the  English  and  Irish  Appeal 
Cases  (1865-75),  and  the  Scotch  and  Divorce  Appeal  Cases 
(1865-75)  are  of  the  first  importance.  They  deal  less  with 
public  and  more  with  private  cases,  and .  the  discussion  of 
legal  principles  is  much  more  scientific  than  any  of  the  prior 
debates  of  the  House. 

In  the  Privy  Council  during  this  period  Kingsdown  re- 
ceived valuable  assistance  from  Knight-Bruce,  who  was 
learned  in  foreign  systems  of  jurisprudence,  and  from 
•Turner,  Penzance  and  Westbury.  Peel  and  Colville  had 
great  weight  in  Indian  appeals.  By  a  statute  of  34  and  35 
Victoria,  provision  was  made  for  the  addition  of  four  paid 
judges,  in  consequence  of  which  the  court  was  strengthened 
by  the  appointment  of  Peacock,  Collier,  Montague  E.  Smith 
and  Byles.  Byles'  service  was  unimportant,  and  Peacock 
confined  his  attention  mainly  to  Indian  appeals ;  but  Collier 
and  Smith  were  able  and  industrious  judges.  Collier  took  an 
important  part  in  formulating  the  opinions  of  the  court,  and 
the  work  performed  by  Smith  was  both  considerable  in 
amount  and  of  permanent  value.  These  judges  were  as- 
sisted principally  by  Cairns  and  Penzance. 


///.     From  the  Judicature  Acts  of  1873-75 
to  the  End  of  the  Century 

In  his  great  speech  introducing  the  Judicature  Act  of 
1873,  Lord  Selborne  enumerated  the  principal  defects  of 
the  existing  system  under  four  heads:  (1)  The  artificial 
separation  of  legal  and  equitable  jurisdictions;  (2)  divided 
courts  and  divided  jurisdictions;  (3)  lack  of  cheapness,  sim- 
plicity and  uniformity  of  procedure;  (4)  necessity  of  im- 
proving the  constitution  of  the  court  of  appeals.  "  We  must 
bring  together,"  he  said,  "  our  many  divided  courts  and  di- 
vided jurisdictions  by  erecting  or  rather  re-erecting  —  for 
after  all  there  was  in  the  beginning  of  our  constitutional  sys- 


806  F.     BENCH   AND   BAR 

tern  one  supreme  Court  of  Judicature  —  a  supreme  court 
which,  operating  under  convenient  arrangements  and  with  a 
sufficient  number  of  judges,  shall  exercise  one  single  undi- 
vided jurisdiction,  and  shall  unite  within  itself  all  the  juris- 
dictions of  all  the  separate  superior  courts  of  law  and  equity 
now  in  existence."  l  Accordingly  the  Curia  Regis  of  the 
Norman  kings  was  taken  as  a  model,  and  all  the  existing 
courts  were  consolidated  into  one  Supreme  Court  of  Judica- 
ture.2 

This  Supreme  Court  was  divided  into  two  sections,  the 
High  Court  of  Justice  and  the  Court  of  Appeal.  The  High 
Court  is  a  court  of  first  instance,  exercising  general  jurisdic- 
tion in  civil  and  criminal  matters.  It  consisted  originally  of. 
five  divisions,  corresponding  to  the  old  courts,  of  which  it  was 
made  up.  But  in  1881  the  Common  Pleas  and  Exchequer 
were  finally  abolished;  and  by  subsequent  legislation  the 
Court  of  the  Master  of  the  Rolls  was  likewise  abolished,  and 
that  judge  was  placed  at  the  head  of  a  division  of  the  Court 
of  Appeal.  The  court  now  sits  in  three  divisions:  King's 
Bench*  Chancery,  and  Probate,  Divorce  and  Admiralty. 
The  business  assigned  to  each  division  corresponds  to 
its  ancient  jurisdiction;  but  the  changes  effected  by  the 
Judicature  Act  are  these:  any  judge  may  sit  in  any  court 
belonging  to  any  division,  or  may  take  the  place  of  any  other 
judge,  and  any  relief  which  might  be  given  by  any  of  the 
courts  whose  jurisdiction  is  now  vested  in  the  supreme  court 
may  he  given  by  any  judge  or  division  of  the  supreme  court, 
and  any  ground  of  claim  or  defence  which  would  have  been 
recognized  in  any  of  the  old  courts  may  be  recognized  by  any 
division  of  the  new  court.  Where  the  rules  of  equity,  com- 
mon law  and  admiralty  conflict,  equity  prevails  in  the  absence 
of  specific  provisions.  Besides  this  uniform  administration 
of  the  principles  of  law  and  equity,  the  act  also  provided  a 
common  and  simple  code  of  procedure.  The  main  character- 
istics of  this  procedure  are  similar  to  those  which  have  long 

1  Hansard's  Parl.  Debates,  vol.  214,  pp.  331,  337. 

2  The  first  Judicature  Act  was  passed  in  1873,  and  was  designed  to 
take  effect  in   1874;    but  this  not  being  practicable  its   operation   was 
postponed  until  1875,  when  a  second  act  was  passed,  and  the  judges 
took  their  seats  as  members  of  the  Supreme  Court. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  807 

been  familiar  in  this  country :  a  single  form  of  action  for  the 
protection  of  all  primary  rights,  whether  legal  or  equitable; 
a  limited  pleading  characterized  by  a  plain  and  concise 
statement  of  the  substantive  facts;  provision  for  rejoinder 
of  different  causes  of  action  and  the  bringing  in  of  new 
parties,  with  a  view  to  the  adjustment  of  the  substantial 
rights  of  all  the  parties  and  the  complete  determination  of 
the  whole  controversy  in  a  single  action. 

In  some  respects  this  great  measure  of  reform  has  failed 
to  meet  the  expectations  of  its  supporters.  In  accordance 
with  the  original  design,  the  chancery  judges  ceased  to  be 
vice-chancellors,  and  as  justices  of  the  High  Court  took 
turns  with  the  judges  of  the  Queen's  Bench  in  going  on  cir- 
cuit to  try  common  law  cases.  But  the  practice  was  soon 
abandoned,  and  the  chancery  judges  now  confine  themselves 
to  the  administrative  and  other  business  for  which  they  have 
special  aptitude.  Hence  the  dividing  line  between  the  two 
ancient  jurisdictions  is  still  observed.  In  other  respects  the 
original  scheme  of  assimilation  has  broken  down.  Probate, 
divorce  and  admiralty  matters  still  form  a  class  by  them- 
selves; bankruptcy  affairs  have  a  court  of  their  own,  and 
separate  courts  sit  for  the  trial  of  commercial  and  of  rail- 
way and  canal  cases. 

(a)   The  High  Court  of  Justice 

The  establishment  of  a  permanent  Court  of  Appeal  under 
the  Judicature  Act  has  served  to  detract  from  the  relative 
importance  of  the  judges  of  the  High  Court.  The  presidents 
of  the  three  great  divisions  are  of  course  most  conspicuous. 
The  presiding  judge  of  the  Queen's  Bench  Division  is  now 
the  Lord  Chief  Justice  of  England.  Lord  Coleridge,  the  first 
chief  to  assume  this  title,  succeeded  Cockburn  in  1880.  Like 
Cockburn  he  was  a  man  of  ripe  scholarship  and  polished  elo- 
quence, and  as  a  presiding  magistrate  he  left  nothing  to  be 
desired  in  the  way  of  dignity  and  urbanity.  With  an  intellect 
quite  as  strong  and  with  even  broader  views,  he  was  never- 
theless inferior  to  Cockburn  in  industry  and  application.  He 
did  not  seem  to  enjoy  wrestling  with  principles  and  author- 


808  F.     BENCH   AND   BAR 

ities  in  the  solution  of  difficult  problems,  and  was  content  to 
contribute  less  to  the  law  than  colleagues  not  so  gifted.  Oc- 
casionally a  case  of  general  public  interest  roused  him  from 
his  seeming  indifference,  and  on  such  occasions  his  work  was 
so  admirable  as  to  prompt  a  feeling  of  regret  that  he  was  not 
more  assiduous  in  the  exercise  of  his  undoubted  ability.  The 
reports  contain  several  such  expositions  of  the  law,  animated 
by  learning,  exquisite  diction,  elevation  of  sentiment  and  lib- 
erality of  thought.  The  interesting  case  of  Reg.  v.  Dudley, 
15  Cox  Cr.  Cas.  624,  where  the  issue  was  whether  ship- 
wrecked persons  were  justified  in  taking  the  life  of  one  of 
their  number  in  order  to  save  themselves  from  death  by  starv- 
ation, displays  his  powers  at  their  best.  His  statement  of  the 
modern  law  relating  to  blasphemy,  on  the  trial  of  Ramsey 
and  Foote,  48  L.  T.  733,  is  in  every  way  a  notable  effort. 
With  his  ready  wit  and  fluent  tongue,  Coleridge  was  perhaps 
at  his  best  when  sitting  with  a  jury.  In  summing  up  a  case 
he  was  always  admirable.1 

Russell,  who  succeeded  Coleridge  as  chief  justice  in  1894, 
had  been  for  many  years  the  leader  of  the  common  law  bar. 
Although  not  a  profound  lawyer,  he  was  a  man  of  great 
force,  and  displayed  commendable  energy  in  the  furtherance 
of  practical  reforms  in  the  procedure  of  his  division.  The 
institution  of  the  new  court  for  commercial  causes  was 
largely  due  to  him.  Like  many  of  his  predecessors  he  dis- 
played great  ability  as  a  criminal  judge.  He  enjoyed  the 
distinction  of  being  the  first  Roman  Catholic  to  hold  the  office 
of  chief  justice  since  the  Reformation. 

The  lord  chancellor,  the  president  of  the  Chancery  Divi- 
sion, now  practically  confines  his  judicial  labors  to  the  House 
of  Lords.  The  first  president  of  the  Probate,  Divorce  and 
Admiralty  Division  was  Hannen.  With  his  knowledge  of  the 
law  relating  to  the  various  sections  of  his  court,  his  pains- 

1  Other  evidences  of  his  ability  may  be  found  in  Reg.  v.  Bradlaugh, 
15  Cox  Cr.  Cas.  225;  Usill  ».  Hales,  3  C.  P.  D.  319;  Reg.  v.  Labouchere, 
15  Cox  Cr.  Cas.  423;  Mogul  Steamship  Co.  v.  McGregor,  21  Q.  B.  D. 
544;  Reg.  v.  Keyn,  2  Ex.  D.  63;  Twycross  v.  Grant.  2  C.  P.  D.  469; 
Bowen  v.  Hall,  6  Q.  B.  D.  333  (dissenting) ;  Ford  ».  Wiley,  16  Cox  Cr. 
Cas.  68ft;  Bradlaugh  v.  Newdigate,  11  Q.  B.  D.  1.;  Currie  v.  Misa,  10  Ex. 
153  (dissenting);  Mackonochie  r.  Penzance,  4  Q.  B.  D.  697;  Ex  parte 
Daisy  Hopkins,  17  Cox  Cr.  Cas.  448. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  809 

taking  industry,  absolute  impartiality  and  keen  sense  of  the 
value  of  evidence,  he  won  universal  esteem.  The  spirit  which 
animated  his  labors  was  displayed  in  his  address  at  the  con- 
clusion of  the  hearing  before  the  Parnell  Commission,  over 
which  he  presided.  In  speaking  of  the  responsibility  of  the 
judges  he  said  that  one  hope  supported  them:  "Conscious 
that  throughout  this  great  inquest  we  have  sought  only  the 
truth,  we  trust  that  we  shall  be  guided  to  find  it,  and  set  it 
forth  plainly  in  the  sight  of  all  men."  His  opinions,  which 
are  more  fully  reasoned  than  those  of  Cresswell,  are  notable 
for  their  graceful  diction  and  apt  illustrations.1  Among 
the  more  prominent  justices  of  the  Queen's  Bench  Division 
during  this  period  were  Hawkins  2  and  Stephen,3  whose  spe- 
cialty was  criminal  law,  Mathew  and  Wright  in  commercial 
law,  and  Chitty  and  Kay  in  equity. 


(b)   The  Court  of  Appeal 

The  second  section  of  the  Supreme  Court,  the  Court  of 
Appeal,  is  composed  of  the  Master  of  the  Rolls  and  five  Lords 
Justices,  with  the  heads  of  the  three  great  divisions  of  the 
High  Court,  the  Lord  Chancellor,  the  Lord  Chief  Justice  arid 
the  President  of  the  Probate,  Divorce  and  Admiralty  Divi- 
sions, as  members  ex  ofjicio.  It  exercises  a  general  appellate 
jurisdiction  in  civil  cases  from  the  determinations  of  the 
High  Court.  It  was  originally  planned  to  make  this  the 
final  court  of  appeal,  but  the  pressure  from  the  House  of 
Lords  was  too  strong,  and  in  the  end  the  judicial  functions 
of  the  House  were  left  undisturbed;  so  that  the  Supreme 

1  Boughton  v.  Knight  L.  R.  3  P.  64;  Durham  v.  Durham;  Sugden  v. 
St.  Leonards,  1  P.  D.  154;  Gladstone  v.  Gladstone;  Crawford  v.  Dilke; 
Frederick  Legitimacy  Case;  Niboyet  v.  Nihoyet,  4  P.  D.  1 :  Smee  v. 
Smee,  5  P.  D.  84  ; .  Sottomayor  v.  De  Barros,  5  P.  D.  94 ;  Bloxam  v. 
Favre,  9  P.  D.  130;  Harvey  v.  Farine,  52  L.  J.  P.  53;  Peek  r.  Derry, 
37  Ch.  D.  591 ;  Master  v.  Master,  42  L.  J.  P.  1 ;  Duke  of  Buccleuch  v. 
Met.  Bd.  Wks.  5  E.  and  I.  App.  418;  Bailey  v.  De  Crespigny,  4  Q.  B. 
184. 

*Re  Castioni,  17  Cox  Cr.  Cas.  237;  R.  v.  Curtis,  15  do.  749;  R.  ». 
Clarence,  58  L.  J.,  Mag.  Cas.  10;  R.  v.  Lillyman,  65  do.  195;  Ford  v. 
Wiley,  16  Cox  Cr.  Cas.  688. 

3R.  v.  Tolson,  23  Q.  B.  169;  D.  v.  Seme1,  16  Cox  Cr.  Cas.  311;  R.  v. 
Clarence,  16  do.  523;  R.  v.  Cox,  15  do.  612;  R.  v.  Price,  15  do.  393;  R. 
v.  Doherty,  16  do.  307. 


810  V.     BENCH   AND   BAR 

Court  is  supreme  only  in  name.  The  original  conception  of 
this  court,  as  a  single  court  in  law  and  equity,  was  that  the 
contact  of  minds  trained  in  the  different  systems  would  sub- 
ject the  current  ideas  and  tendencies  of  the  rival  systems  to 
scrutiny,  and  thereby  dispel  confusion,  explode  inveterate 
fallacies,  and  give  increased  clearness  and  force  to  principles 
of  permanent  value.  But  here,  as  in  the  court  of  first  in- 
stance, this  expectation  has  not  been  realized.  The  Court  of 
Appeal  now  sits  in  two  divisions,  chancery  appeals  being  al- 
lotted to  one  division,  common  law  appeals  to  the  other;  and 
it  usually  happens  that  chancery  appeals  are  heard  by  chan- 
cery lawyers  and  common  law  appeals  by  lawyers  trained  in 
the  common  law.  Nevertheless,  this  court  has  given  general 
satisfaction.  It  is,  indeed,  as  one  of  its  most  distinguished 
members  called  it,  the  backbone  of  the  judicial  system. 

The  principal  judges  of  the  first  decade  of  the  court, 
during  the  service  of  Sir  George  Jessel  as  master  of  the 
rolls  (1873-83),  were  James  (to  1881),  Baggallay  (1875- 
85),  Bramwell  (1876-81),  Brett  (1876-97),  and  Cotton 
(1877-90). 

Jessel's  short  service  of  less  than  ten  years  sufficed  to  give 
him  a  place  in  the  narrow  circle  of  great  judges.  Other 
judges  have  been  more  subtle  in  intellect,  but  in  swiftness  and 
sureness  of  apprehension,  in  grasp  of  facts,  tenacity  of  mem- 
ory and  healthy  superiority  to  mere  precedent,  he  presented 
a  combination  of  qualities  not  to  be  found  to  the  same  degree 
in  any  other  judge  of  his  time.  His  quickness  of  perception 
amounted  almost  to  intuition.  His  learning  was  profound; 
yet  he  was  no  mere  follower  of  precedent,  no  mere  directory 
of  cases.  He  was  able  to  take  up  the  confused  mass  of  the 
law  and  mould  it  to  the  ends  of  justice.  No  matter  what  the 
subject  under  discussion  was  —  and  no  branch  of  the  law 
seemed  unfamiliar  to  him  —  he  was  alike  clear,  practical  and 
profound.  Such  achievements  are  possible  only  to  a  man 
gifted  with  the  swiftest  apprehension  and  the  most  ample  and 
tenacious  memory.  It  was  these  faculties  which  enabled  him 
to  deal  with  such  extraordinary  sagacity  with  facts,  however 
numerous  and  complicated,  and  to  deliver  occasionally  those 
judgments  in  which  the  statement  of  facts  gives  at  once  the 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  811 

reasoning  and  the  conclusion.  The  excellence  of  his  judicial 
opinions  becomes  truly  marvelous  when  we  are  assured  that 
he  never  reserved  judgment,  except  in  deference  to  the  wishes 
of  a  colleague,  and  that  he  never  read  a  written  opinion.  A 
remarkable  feat  of  this  kind  was  his  decision  in  the  great 
Epping  Forest  case,  concerning  the  ancient  rights  of  twenty 
mairors.  The  hearing  lasted  twenty-two  days,  one  hundred 
and  fifty  witnesses  having  been  examined.  Jessel  delivered 
judgment  orally  immediately  upon  conclusion  of  the  evidence, 
and  no  appeal  was  taken  from  his  decision,  although  the 
largest  forest  in  the  vicinity  of  London  was  thereby  thrown 
open  to  the  public.  "  I  may  be  wrong,"  he  once  said,  "  and 
doubtless  I  sometimes  am ;  but  I  never  have  any  doubts." 

Apart  from  the  soundness  of  his  conclusions,  his  opinions 
are  always  expressed  with  vigorous  and  pungent  emphasis. 
His  work  is  conspicuous  for  the  spirit  in  which  he  approached 
his  cases.  "  There  is  a  mass  of  real  property  law,"  he  frankly 
told  a  friend,  "  which  is  nonsense.  Look  at  things  as  they 
are  and  think  for  yourself."  This  he  certainly  did.  No 
judge  has  ever  been  plainer  in  denunciation  of  ancient  tech- 
nicalities. In  Couldrey  v.  Bartrum,  19  Ch.  D.  394,  he  said: 
"  According  to  the  English  law  a  creditor  might  accept  any- 
thing in  satisfaction  of  a  debt  except  a  less  amount  of  money. 
He  might  take  a  horse  or  a  canary  or  a  tomtit  if  he  chose, 
and  that  was  accord  and  satisfaction ;  but  by  a  most  extraor- 
dinary peculiarity  of  the  English  law  he  could  not  take  19s. 
6d.  in  the  pound.  That  was  one  of  the  mysteries  of  the  Eng- 
lish common  law,  and  as  every  debtor  had  not  on  hand  a  stock 
of  canary  birds  or  tomtits  or  rubbish  of  that  kind  it  was  felt 
desirable  to  bind  the  creditors,"  etc.  Of  authorities  which 
conflicted  with  his  views  of  equity  he  was  not  always  as  tol- 
erant as  he  was  in  the  case  of  Jackson's  Will,  13  Ch.  D.  189, 
where,  in  speaking  of  the  question  whether  a  reversionary  in- 
terest in  personality  should  be  excluded  from  a  gift  of  "  any 
estate  or  interest  whatever,"  he  said :  "  I  see  no  reason  what- 
ever why  it  should ;  but  not  wishing  to  speak  disrespectfully 
of  some  of  the  decisions  I  shall  say  nothing  further  about  it.'* 
In  Re  National  Funds  Assurance  Co.,  11  Ch.  D.  118,  he  be- 
gan his  opinion  thus :  "  This  question  is  one  of  great  diffi- 


812  F.     BENCH    AND    BAR 

culty  by  reason  of  the  authorities,  and  my  decision  may  pos- 
sibly not  be  reconcilable  with  one  or  more  of  them.  In  the 
view  which  I  take  of  them  I  think  they  do  not,  when  fairly 
considered,  prevent  my  arriving  at  the  conclusion  at  which 
I  should  have  arrived  had  there  been  no  authorities  at  all." 
He  was  equally  unceremonious  in  dealing  with  the  opinions 
of  his  colleagues.  In  referring,  in  Re  Hallett's  Estate,  13 
Ch.  D.  676,  to  a  decision  by  Mr.  Justice  Fry,  where  that 
learned  judge  had  felt  himself  "  bound  by  a  long  line  of 
authorities,"  Jessel  said :  "  That  being  so,  I  feel  bound  to 
examine  his  supposed  long  line  of  authorities,  which  are  not 
very  numerous,  and  show  that  not  one  of  them  lends  any  sup- 
port whatever  to  the  doctrine  or  principle  which  he  thinks  is 
established  by  them."  At  all  events  he  was  no  respecter  of 
persons.  In  Johnson  v.  Crook,  12  Ch.  D.  439,  he  took  a  view 
contrary  to  most  of  the  other  equity  judges,  and  despatched 
them  in  order.  After  quoting  from  Vice-Chancellor  Wood  he 
says :  "  All  I  can  say  about  it  is  that  it  was  simply  a  mistake 
of  the  Vice-Chancellor,  and  that  is  how  I  shall  treat  it."  Then, 
quoting  from  Lord  Chelmsford's  opinion,  he  adds :  "  I  am 
no  CEdipus ;  I  do  not  understand  the  passage."  Further  on 
he  remarks :  "  Lord  Selborne  says,  *  Lord  Thurlow  said  ' 
so  and  so.  There  is  a  very  good  answer  to  that  —  he  did  not 
say  so."  "What  is  the  proper  use  of  authorities?"  he  in- 
quire in  Re  Hallett's  Estate,  13  Ch.  D.  676.  He  declares 
it  to  be  "  the  establishment  of  some  principle  which  the 
judge  can  follow  out  in  deciding  the  case  before  him." 
Jessel  had  a  convenient  application  of  this  rule  by  means  of 
which  even  the  decision  of  a  higher  court  was  not  binding  un- 
less it  decided  a  principle  which  he  recognized  as  such.  In  Re 
International  Pulp  Co.,  6  Ch.  D.  556,  where  he  was  pressed 
with  the  authority  of  two  cases  previously  decided  by  a 
higher  court,  he  said :  "  I  will  not  attempt  to  distinguish  this 
case  from  the  cases  before  the  Court  of  Appeal,  but  I  will 
say  that  I  do  not  consider  them  as  absolutely  binding  upon 
me  in  the  present  instance,  and  for  this  reason,  that  as  I  do 
not  know  the  principle  upon  which  the  Court  of  Appeal 
founded  their  decision  I  cannot  tell  whether  I  ought  to  follow 
them  or  not.  If  these  decisions  do  lay  down  any  principle 


%0.     VEEDER:  A  CENTURY  OF  JUDICATURE  813 

I  am  bound  by  it ;  but  I  have  not  the  remotest  notion  what 
that  principle  is.  Not  being  at  liberty  to  guess  what  the 
principle  of  those  decisions  is,  I  am  only  bound  to  follow 
them  in  a  precisely  similar  case;  consequently,  as  the  legal 
decisions  do  not  stand  in  my  way,  I  dismiss  the  summons  with 
costs." 

It  is  remarkable  that  so  strong  and  positive  a  mind  should 
have  gone  wrong  so  seldom.  In  the  few  cases  in  which  he 
was  reversed  his  errors  came  from  his  keen  sense  of  justice 
and  impatience  with  the  law's  delays.1  His  complacency  was 
never  disturbed  by  reversals.  "  That  is  strange,"  he  said  when 
his  attention  was  called  to  the  fact  that  the  Court  of  Appeal 
had  reversed  one  of  his  decisions ;  "  when  I  sit  with  them 
they  always  agree  with  me."  Jessel's  mental  fibre  was  so 
strong  that  it  was  coarse  grained.  He  lacked  the  cultivated 
imagination  of  such  men  as  Cairns,  whom,  alone  of  his  con- 
temporaries, he  conceded  to  be  his  superior,  and  second  only 
to  Hardwicke.  In  the  rank  of  supremacy  in  the  long  line  of 
chancery  judges  he  modestly  placed  himself  third.2 

Bramwell  had  few  of  those  subtle  and  impressives  attributes 
which  go  toward  the  make-up  of  a  great  judge  of  appeal.  It 
would  be  idle  to  compare  him  as  such  with  such  contempo- 
raries as  Cairns,  Selborne  or  Bowen.  But  his  sturdy  common 
sense  was  an  invaluable  influence  for  good  among  associates 
differently  constituted.  In  the  Court  of  Appeal,  sitting  with 

1  See  Coventry  and  Dixon's  case,  14  Ch.  D.  660. 

*  Jessel's  work  may  be  studied  in  the  following  list  of  representative 
opinions:  Re  Halleft's  Estate,  13  Ch.  D.  693;  Smith  v.  Chadwick,  46 
L.  T.  702,  20  Ch.  D.  67;  Wallis  v.  Smith,  21  Ch.  D.  243;  Re  Campden's 
Charities,  18  Ch.  D.  310;  Baker  v.  Sebright,  13  Ch.  D.  179;  Rossiter  ». 
Miller,  36  L.  T.  304;  Adams  v.  Angell,  5  Ch.  D.  634;  Anglo-Italian 
Bank  v.  Davies,  9  Ch.  D.  275;  Carter  v.  Wake,  4  Ch.  D.  605;  Dymond 
v.  Croft,  3  Ch.  D.  512;  Re  Eager,  32  Ch.  D.  86;  Flower  ».  Lloyd,  6  Ch. 
D.  297;  Freeman  v.  Cox,  8  Ch.  D.  148;  Re  Hargreave's  Contract,  32 
Ch.  D.  454;  Henty  v.  Wrey,  21  Ch.  D.  332;  Patman  v.  Harland,  17 
Ch.  D.  353;  Redgrave  v.  Kurd,  20  Ch.  D.  1;  Richards  v.  Delbridge, 
L.  R.  18  Eq.  11;  Steed  v.  Preece,  L.  R.  18  Eq.  192;  Sutton  ».  Sutton, 
22  Ch.  D.  511;  Tussaud  v.  Tussaud,  9  Ch.  D.  363;  Walsh  v.  Lonsdale, 
21  Ch.  D.  9;  Couldery  v.  Bartrum,  19  Ch.  D.  394;  Sugden  v.  St.  Leon- 
ards, 1  P.  D.  154;  Ex  parte  Reynolds,  20  Ch.  D.  294;  Suffell  v.  Bk.  of 
England,  9  Q.  B.  D.  555;  Mersey  Steel  Co.  v.  Naylor,  9  Q.  B.  D.  648; 
Aynsley  v.  Glover,  18  Eq.  544;  Speight  v.  Gaunt,  22  Ch.  D.  727;  Ewing 
v.  Orr  Ewing,  22  Ch.  D.;  Re  W.  Canada  Oil  Co.  17  Eq.  1  (first  case); 
Ex  parte  Willey,  74  L.  T.  366  (last  case). 


814  V.     BENCH   AND    BAR   

Brett  and  Mellish,  he  supplemented  the  impetuosity  of  the 
former  and  the  somewhat  academic  narrowness  of  the  latter. 
Sitting  in  equity  with  Jessel  and  James  he  was  not  so  much  in 
his  element.  On  one  occasion,  in  following  the  chancery 
judges  in  giving  opinion  in  an  equity  case,  he  said:  "  Having 
listened  all  day  to  things  which  I  don't  think  I  ever  heard  of 
before,  I  can  safely  say  I  am  of  the  same  opinion  and 
for  the  same  reasons."  His  pronounced  views  upon  the 
desirability  of  holding  people  to  their  bargains  prompted 
little  sympathy  with  certain  equitable  doctrines.  Cotton, 
through  a  longer  term  of  service,  made  a  very  respectable 
reputation.  He  brought  to  the  discharge  of  his  judicial 
duties  the  clearness  of  thought  and  thorough  preparation 
which  had  characterized  his  vast  labors  as  an  equity  lawyer, 
and,  notwithstanding  a  certain  want  of  facility  in  expression, 
his  numerous  opinions  (for  he  was  rarely  satisfied  with  mere 
acquiescence)  will  repay  careful  study.1  Upon  the  death  of 
Jessel  in  1883  he  became  more  prominent  as  the  presiding 
judge  of  the  chancery  division  of  the  court. 

When  Brett  (better  known  by  his  subsequent  title,  Lord 
Esher)  was  made  one  of  the  first  judges  of  the  Court  of 
Appeal  he  had  already  served  an  apprenticeship  of  eight 
years  as  a  judge  of  the  Court  of  Common  Pleas.  Being  fur- 
ther promoted  to  the  post  of  master  of  the  rolls  in  1883,  he 
served  until  1897,  thus  completing  a  continuous  service  of 
thirty  years.  Unfortunately  for  his  reputation,  he  clung  to 
office  so  long  after  age  had  impaired  his  usefulness  that  he 
was  often  spoken  of  by  his  contemporaries  with  reproach. 
But  no  one  who  has  examined  with  any  care  the  total  result 
of  his  long  service  will  be  apt  to  overlook  its  value.  That  he 
was  a  learned  lawyer,  particularly  in  the  domain  of  commer- 
cial law,  cannot  be  gainsaid ;  shortly  after  his  accession  to  the 
bench  we  find  the  learned  Willes  adopting  and  commending 
the  opinion  of  his  young  associate.2  Still,  it  was  rather  as 

1  Johnstone  v.  Milling,  16  Q.  B.  D.  460;   Henty  v.  Capital  &  Counties 
Bank,  7  do.  174;    Davies  v.  Davies,  36  Ch.  D.,  359;    Allcard  v.  Skinner, 
36  do.  145;   Tod  Heatley  v.  Benham,  40  do.  97;   Angus  v.  Dalton,  6  App. 
Cas.  779;    Harney  v.  Farnie,  6  P.  D.  35;    Niboyet  v.  Niboyet,  4  do.  1 ; 
Re  Goodman's  Trusts,  44  L.  T.  527;  Turton  v.  furton,  61  do.  571;  Ken' 
sit  v.  Great  Eastern  Ry.,  51  do.  863;    Hunt  v.  CMrke,  61  do.  343. 

2  Gray  v.  Carr,  6  Q.  B.  554. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  815 

an  invigorating  influence  that  his  services  were  of  most  value. 
He  resembled  Bramwell  in  an  ingrained  aptitude  for  logic, 
and  often  displayed  a  tendency  to  reach  beyond  established 
authorities  and  the  particular  facts  of  individual  cases  for 
broad  principles  and  logical  symmetry.  It  must  be  confessed, 
also  that  he  sometimes  went  to  the  other  extreme  in  his  desire 
to  do  full  justice  in  particular  cases.  "  The  law  of  England," 
he  once  said,  "  is  not  a  science.  It  is  the  practical  application 
of  the  rule  of  right  and  wrong  to  the  particular  case  before 
the  court, -and  the  canon  of  law  is  that  that  rule  should  be 
adopted  and  applied  to  the  case  which  people  of  honor,  candor 
and  fairness  in  the  position  of  the  two  parties  would  apply  in 
respect  of  the  matter  in  hand."  In  the  pursuit  of  this 
laudable  end  he  occasionally  seemed  to  overlook  the  necessity 
for  fixed  principles.  He  was  independent  to  a  fault,  and 
frequently  differed  from  his  colleagues.  When  a  precedent 
stood  in  his  way  he  did  not  hesitate  to  pass  it  by.  "  There 
is  no  such  thing  in  law,"  he  said,  "  as  a  rule  which  says  that 
the  court  shall  determine  that  to  be  true  which  the  court 
believes  and  knows  to  be  untrue."  All  his  learning  and 
experience  had  been  in  common  law,  and,  like  most  of  his 
colleagues,  he  was  not  above  an  occasional  sneer  at  equity. 
But  jn  the  practical  administration  of  justice  as  a  judge  of 
appeal  he  was,  perhaps,  next  to  Bowen,  the  common  law  judge 
who  displayed  least  bigotry  in  favor  of  common  law  techni- 
calities as  opposed  to  equity.  However  little  his  style  may 
be  admired,  his  opinions  are,  in  substance,  invariably  inter- 
esting and  suggestive.1 

*The  following  cases  will  give  an  accurate  idea  of  his  great  labors: 
Le  Lievre  v.  Gould,  (1893)  1  Q.  B.  491;  Johnstone  v.  Milling,  16  Q.  B. 
D.  460;  The  Bernina,  12  P.  D.,  58;  Mitchell  v.  Darley  Main  Colliery,  14 
Q.  B.  D.  125;  Bowen  v.  Hall,  6  do.  333;  Randall  v.  'Newson,  2  do/102; 
Mogul  Steamship  Co.  v.  McGregor,  23  do.  598;  Johnson  v.  Roylton,  7 
do.  438;  Harrison  v.  Duke  of  Rutland,  (1893)  1  Q.  B.  142;  Niboyet  v. 
Niboyet,  4  P.  D.  1;  Currie  v.  Misa,  10  Ex.  153;  R.  ».  Judge  of  the  City 
of  London  Court,  66  L.  T.  135;  The  Gas  Float  Whitton,  65  I..  J.,  P.  17; 
Dawkins  v.  Antrobus,  17  Ch.  D.  615;  Angus  v.  Dalton,  6  App.  Cas.  779: 
Drew  v.  Nunn,  4  Q.  B.  D.  661;  R.  v.  Keyn,  2  Ex.  D.  63;  R.  v.  Bunn,  12 
Cox  Cr.  Cas.  338;  Brunsden  v.  Humphrey,  14  Q.  B.  D.  141;  Thomas  v. 
Quartermaine,  18  do.  685;  Finlay  v.  Chirney,  20  do.  494;  Merivale  v. 
Carson,  20  do.  275;  Henty  v.  Cap'ital  &  Counties  Bank,  7  Q.  B.  D.  174; 
Mackonochie'r.  Penzance,  4  do.  697;  Abrath  v.  North  Eastern  Ry.,  11 
do.  440;  Sewell  v.  Burdick,  13  do.  159;  Rankin  v.  Potter,  6  E."  &  I. 


816  V.    BENCH   AND   BAR 

Under  the  service  of  Esher  as  master  of  the  rolls  his 
principal  associates  were  Lindley  (1881-99)  and  Fry  (1883- 
92)  in  equity,  and  Bowen  (1882-94)  and  A.  L.  Smith  (1892- 
1900)  in  common  law. 

After  a  laborious  career  at  the  chancery  bar  Lord  Lind- 
ley spent  six  years  as  a  judge  in  the  Court  of  Common  Pleas, 
and  thus  came  to  the  Court  of  Appeal  thoroughly  equipped. 
Had  other  judges  been  equally  well  trained,  Lord  Selborne's 
original  scheme  for  the  consolidation  of  law  and  equity  might 
have  been  realized.  As  it  happened,  Lindley  found  his  sphere 
of  usefulness  in  the  chancery  division  of  the  Court  of  Appeal, 
where  for  twenty  years  his  accurate  and  methodical  mind  set 
a  high  standard  of  efficiency  for  his  associates.  As  a  spe- 
cialist he  completely  mastered  the  law  relating  to  companies 
and  to  partnership.  His  opinions  are  logical,  comprehen- 
sive and  convincing,  and  the  only  criticism  that  the  most  cap- 
tious could  make  is  that  when  any  of  his  brethren  dissent  he 
is  apt  to  wander  off  in  all  the  by-paths  of  the  subject  in  his 
evident  desire  to  fortify  his  conclusion.1  Lord  Justice  Fry 
was  one  of  the  greatest  technical  masters  of  modern  equity, 

App.  83;  Hollins  v.  Fowler,  7  do.  762;  The  Parlement  Beige,  5  P.  D. 
197;  Bridges  v.  No.  London  Ry.,  7  E.  &  I.  App.  213;  Bank  of  England 
«.  Vagliano,  61  L.  T.  420;  Medawar  v.  Grand  Hotel  Co.,  64  do.  851;  R. 
«.  Barnado,  64  do.  73;  Castillian  v.  Preston,  49  do.  29;  Ballard  v.  Tom- 
linson,  52  do.  952;  The  Pondita,  51  do.  849;  Macdougall  v.  Knight,  55 
do.  274;  The  Moorcock,  60  do.  654;  Searles  v.  Scarlett,  66  do.  837;  Cam- 
pania de  Mocambique  v.  British  So.  Africa  Co.,  66  do.  773;  South  Het- 
tor  Coal  Co.  v.  News  Asso.,  63  do.  293;  Meux  v.  Great  Eastern  Ry.,  64 
do.  657;  Wakelin  v.  London  &  South  Western  Ry.,  65  do.  224;  Seton  v. 
Lafone,  57  do.  547;  Walter  v.  Everard,  65  do.  443;  Salmon  v.  Warner, 
65  do.  132;  Cleaver  v.  Mutual  Life  Asso.,  66  do.  220;  Royal  Aquarium 
v.  Parkinson,  66  do.  513;  Turton  v.  Turton,  61  do.  571. 

JR.  v.  Keyn,  2  Ex.  D.  63;  The  Bernina,  12  P.  D.  58;  Angus  v.  Clif- 
ford, 6  App.  Cas.  779;  Scaramanga  ».  Stamp,  4  C.  P.  D.  316;  Hollins 
v.  Merney,  13  Q.  B.  D.  305;  Tod  Heatley  u.  Benham,  40  Ch.  D.  97; 
Dashwood  v.  Magniac,  (1891)  3  Ch.  306;  Allcard  v.  Skinner,  36  Ch.  D., 
145;  Maxim-Nordenfelt  case,  (1893)  1  Ch.  631;  Carlill  v.  Carbolic 
Smoke  Ball  Co.,  (1893)  1  Q.  B.  265;  Dalton  v.  Angus,  6  App.  Cas.  740; 
Smith  v.  Chadwick,  20  Ch.  D.  67;  Stuart  v.  Bell,  64  L.  T.  633;  Red- 
daway  v.  Hemp  Spinning  Co.,  67  do.  301 ;  Whitwood  Chemical  Co.  v. 
Hardman,  64  do.  716;  Re  Piercy,  78  do.  277;  Re  Perry  Almshouses, 
79  do.  366;  Lyons  v.  Wilkins,  79  do.  709;  Pemberton  v.  Hughes,  80  do. 
592;  Low  v.  Bonviere,  65  do.  533;  McClatchie  v.  Hasham,  65  do.  691; 
Ballard  v.  Tomlinson,  52  do.  942;  White  v.  White,  62  L.  J.,  Ch.  342; 
Lemmon  v.  Webb,  63  do.  570;  Hudson  v.  Ashby,  65  do.  515;  Powell  v. 
Birne  Vinegar  Co.,  65  do.  563;  Macduff  v.  Macduff,  65  do.  700;  Har- 
dacker  v.  District  Council,  65  L.  J.,  Q.  B.  363;  Speight  v.  Gaunt,  29 
Ch.  D.  727. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  817 

and  contributed  materially  to  the  high  standing  of  the  court.1 
Laymen  have  seldom  found  the  law  reports  entertaining 
reading.  Lord  Bowen  is  probably  the  only  judge  in  recent 
times  whose  work  has  commanded  general  interest.  The  rea- 
son is  not  far  to  seek.  Besides  grasp  of  principle,  breadth 
of  view  and  cogent  reasoning,  the  style  is  so  lucid,  the  illus- 
trative matter  so  aptly  chosen,  the  analogies  so  dexterously 
handled,  the  whole  fabric  of  the  exposition  so  admirably  ar- 
ticulated, that  he  may  be  said  to  have  combined,  to  an  extent 
unsurpassed  in  English  law,  legal  learning  and  literary  form. 
He  had  a  refreshing  conception  of  intellectual  reserve,  a  fine 
sense  of  proportion  and  wholesome  mental  habits  of  discrimi- 
nation ;  and  he  expounded  the  historical  evolution  of  legal 
principles  in  a  style  so  pure,  accurate  and  distinguished  that 
it  appeals  to  all  persons  of  cultivated  taste.  In  comparison 
with  contemporaries  who  were  his  peers  in  intellectual  power, 
he  may  be  said  to  have  shared  with  Westbury,  Cairns  and 
Selborne  a  precision  of  thought  and  logical  faculty  which 
rendered  his  mind  capable  at  once  of  entertaining  the  broadest 
views  and  the  most  subtle  distinctions.  But  he  lacked  their 
versatility.  He  was  perhaps  the  equal  of  Blackburn  and 
Jessel  in  legal  learning,  without  the  pedantry  of  one  or  the 
dogmatism  of  the  other.  But  he  fell  short  of  them  in  energy. 
In  affinity  and  contrast  Cairns  probably  furnishes  the  best 
comparison.  Cairns  has  never  been  surpassed  in  intuitive 
insight  in  legal  principles;  his  judgments  are  illuminations 
rather  than  ratiocinations.  Bowen  shows  us  the  process  by 
which  he  arrives  at  a  conclusion  ;  we  may  observe  the  penetra- 
tion and  precision  of  a  severely  logical  mind.  Cairns  was  a 
genius ;  Bowen  was  a  scholar. 

The  most  obvious  characteristic  of  Bowen's  opinions  is 
purity,  ease  and  accuracy  of  style.  Along  with  legal  acquire- 
ments which  he  shared  with  many  of  his  judicial  contempo- 

'Cochrane  v.  Moore,  25  Q.  B.  D.  57;  Davies  v.  Davies,  36  Ch.  D.  359; 
Northern  Counties  Fire  Ins.  v.  Whipp,  26  do.  482;  Miles  r.  New  Zea- 
land Co.  32  do.  266;  Nitro-Phosphate  Co.  v.  London  Docks  Co.,  9  do. 
503;  Fritz  v.  Hobson,  14  do.  42;  Smith  v.  Chadwick,  20  Ch.  D.  67;  Dai- 
ton  v.  Angus,  6  App.  Cas.  740;  Roussilon  v.  Roussilon,  14  Ch.  D.  358; 
Salmon  v.  Warner,  65  L.  T.  132;  Walter  v.  Everard,  65  do.  445;  Wal- 
lis  v.  Smith,  47  do.  389;  Campania  de  Mocambique  v.  British  So.  Af- 
rica Co.,  66  do.  773;  R.  t>.  Jackson,  64  do.  679. 


818  P.     BENCH    AND    BAR 

rarics,  he  had  what  is  rare  in  such  minds,  a  keen  sense  of 
literary  form  —  "  an  instinctive  preference  for  the  right  way 
of  saying  a  thing,  and  the  literary  conscientiousness  which 
impelled  him  to  seek  for  the  best  expression  of  his  thoughts.'* 
In  distinction  of  style  his  only  equal  among  contemporary 
writers  on  legal  subjects  was  Sir  Henry  Sumncr  Maine;  he 
had  no  rival  on  the  bench.  One  may  find  in  his  work  aphor- 
isms and  lucid  definitions  which  crystallize  a  principle  in  a 
phrase.  Such,  for  instance,  is  his  remark  in  a  case  of  deceit 
that  "  the  state  of  a  man's  mind  is  as  much  a  fact  as  the  state 
of  his  digestion ;  "  and  his  statement  that  a  person's  knowl- 
edge of  danger  is  the  "  vanishing  point "  of  the  liability  of 
the  occupier  of  premises.  But  the  power  of  expressing  the 
most  subtle  shades  of  thought  which  made  Westbury,  for 
instance,  such  a  source  of  legal  maxims,  manifested  itself  in 
Bowen's  work  rather  in  the  production  of  a  total  effect  or 
artistic  whole.  He  had  great  skill  in  graphic  illustration. 
Witness  his  forcible  illustration  in  the  Mogul  Steamship  case 
of  the  expedient  by  merchants  of  sowing  one  year  a  crop  of 
unfruitful  prices  in  order,  by  drawing  away  competition,  to 
reap  a  fuller  harvest  of  profits  in  the  future;  and  his  query 
in  the  same  case  whether  it  would  be  an  indictable  conspiracy 
to  drink  all  the  water  from  a.  common  spring  in  time  of 
drought.  Among  other  instances  are  his  illustration  in  Hut- 
ton  v.  Railway  Company  *  of  sending  all  the  porters  at  a 
railway  station  to  have  tea  in  the  country  at  the  company's 
expense;  his  success  in  laying  bare  the  issue  in  Thomas  V. 
Quartermaine 2  by  reference  to  a  builder  employed  to  make 
repairs ;  his  query  in  the  Carbolic  Smoke  Ball  case  3  whether 
everybody  who  sought  to  find  a  dog  for  a  reward  must  sit 
down  and  write  a  note  to  the  owner  accepting  the  proposal ; 
his  illustration  in  the  Queensland  Bank  case  4  of  being  waylaid 
in  Pall  Mall ;  and  his  reference  in  Saunders  v.  Weil  5  to  the 
Apostles'  spoons. 

The  law,  to  Lord  Bowen,  was  not  a  mere  collection  of  rules. 
"  There  is  no  magic  at  all  in  formalities,"  he  said.  He 
recognized,  to  use  his  own  language,  the  duty  of  endeavoring 

*23  Ch.  D.  654.         »18  Q.  B.  D.  694.          •  (1893)  1  Q.  B.  265. 
4  37  Ch.  D.  479.  •  (1893)  1  Q.  B.  474. 


20.     VEEDER:  A  CENTURY  OF  JUDICATURE  819 

to  apply  legal  doctrines  so  as  to  meet  "  the  broadening  wants 
or  requirements  of  a  growing  country,  and  the  gradual  illu- 
mination of  the  public  conscience."  In  the  course  of  a  bold 
application  of  an  established  principle  he  said :  "  It  is  not  a 
valid  objection  to  a  legal  doctrine  that  it  will  not  be  always 
easy  to  know  whether  the  doctrine  is  to  be  applied  in  a  par- 
ticular case.  The  law  has  to  face  such  embarrassments.  .  .  . 
The  instance  to  which  the  legal  principle  is  now  for  the  first 
time  adopted  by  this  court  may  be  new,  but  the  principle  is 
old  and  sound;  and  the  English  law  is  expansive,  and  will 
apply  old  principles,  if  need  requires  it,  to  new  contin- 
gencies. Just  as,  in  America,  the  law  of  watercourses  and 
of  waste  has  modified  itself  to  suit  the  circumstances  of 
enormous  rivers  and  wide  tracts  of  uncultivated  forests,  so 
the  English  law  accommodates  itself  to  new  forms  of  labor 
and  new  necessities  of  [arbor]  culture."  Dashwood  v.  Mag- 
niac,  (1891)  3  Ch.  306.  Therefore,  in  applying,  in  a  lead- 
ing modern  case,  the  ancient  rule  as  to  contracts  in  restraint 
of  trade,  he  said: 

"  A  covenant  in  restraint  made  by  such  a  person  as  the  de- 
fendant with  a  company  he  really  assists  in  creating  to  take 
over  his  trade,  differs  widely  from  the  covenant  made  in  the 
days  of  Queen  Elizabeth  by  the  traders  and  merchants  of  the 
then  English  towns  and  country  places.  When  we  turn  from 
the  homely  usages  out  of  which  the  doctrine  of  Mitchell  v. 
Reynolds,  1  P.  Wms.  181,  sprang,  to  the  central  trade  of  the 
few  great  undertakings  which  supply  war  material  to  the 
executives  of  the  world,  we  appear  to  pass  to  a  different  at- 
mosphere from  that  of  Mitchell  v.  Reynolds.  To  apply  to 
such  transactions  at  the  present  time  the  rule  that  was  in- 
vented centuries  ago  in  order  to  discourage  the  oppression  of 
English  traders  and  to  prevent  monopolies  in  this  country, 
seems  to  be  the  bringing  into  play  of  an  old-fashioned  instru- 
ment. In  regard,  indeed,  of  all  industry,  a  great  change  has 
taken  place  in  England.  Railways  and  steamships,  postal 
communication,  telegraphs  and  advertisements  have  central- 
ized business  and  altered  the  entire  aspect  of  local  restraints 
on  trade.  The  rules,  however,  still  exist,  and  it  is  desirable 
that  they  should  be  understood  to  remain  in  force.  Great 


820  V.     BENCH    AND    BAR 

care  is  evidently  necessary  not  to  force  them  upon  transac- 
tions which,  if  the  meaning  of  the  rule  is  to  be  observed,  ought 
really  to  be  exceptions."  Maxim-Nordenfelt  Co.  v.  Norden- 
felt,  (1893)  1  Ch.  631. 

Bowen  vitalized  and  enforced  his  exposition  of  legal  prin- 
ciples by  reference  to  history.  "  The  only  reasonable  and  the 
only  satisfactory  way  of  dealing  with  English  law,"  he  once 
said,  "  is  to  bring  to  bear  upon  it  the  historical  method. 
Mere  legal  terminology  may  seem  a  dead  thing.  Mix  his- 
tory with  it  and  it  clothes  itself  with  life."  In  his  brilliant 
application  of  this  method  he  avoided  many  of  the  errors 
which  have  resulted  from  the  attempt  to  give  a  rational 
or  scientific  basis  to  doctrines  which  owe  their  origin  to  his- 
torical accidents.  A  brief  quotation  from  his  opinion  in  a 
nisi  prius  action  for  illegal  distraint,  in  which  it  was  claimed 
that  the  landlord  had  broken  an  outer  door,  will  illustrate 
his  use  of  the  historical  method :  "  The  doctrine  of  the  in- 
violability of  the  outer  doors  of  a  house  and  its  precinct  has 
long  been  established  by  English  law.  The  principle  is  one 
which  carries  us  back  in  imagination  to  wilder  times,  when 
the  outer  door  of  a  house,  or  the  outer  gates  and  enclosures 
of  land,  were  an  essential  protection,  not  merely  against 
fraud,  but  violence.  The  proposition  that  a  man's  house  is 
his  castle,  which  was  crystallized  into  a  maxim  by  the  judg- 
ment in  Semayne's  case,  and  by  Lord  Coke,  dates  back  to 
days  far  earlier  still,  when  it  was  recognized  as  a  limitation 
imposed  by  law  on  all  process  except  that  which  was  pur- 
sued at  the  King's  suit  and  in  his  name.  A  landlord's  right 
to  distrain  for  arrears  of  rent  is  itself  only  a  survival  of 
one  among  a  multitude  of  distraints  which,  both  in  England 
and  other  countries,  belonged  to  a  primitive  period  when 
legal  procedure  still  retained  some  of  the  germs  of  a  semi- 
barbarous  custom  of  reprisals,  of  which  instances  abound 
in  the  early  English  books,  and  in  the  Irish  Senchus  Mor. 
Later,  all  creditors  and  all  aggrieved  persons  who  respected 
the  King's  peace,  the  sheriff  in  a  civil  suit  and  the  landlord 
in  pursuit  of  his  private  remedy  for  rent  and  services,  were 
both  of  them  held  at  bay  by  a  bolted  door  or  barred  gate. 
To  break  open  cither  was  to  deprive  the  owner  of  protection 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  821 

against  the  outer  world  for  his  family,  his  goods  and  furni- 
ture and  his  cattle."  American  Must  Corp.  v.  Hendry,  62 
L.  J.,  Q.  B.  389. 

His  subtle  intellect  could  not  have  made  him  the  great 
judge  that  he  was  had  it  not  been  balanced  by  good  sense. 
He  was  continually  using  the  terms  common  law  and  com- 
mon sense  as  equivalents;  he  likened  the  common  law  to  an 
"  arsenal  of  sound  common  sense  principles."  A  multitude 
of  illustrations  could  be  given.  One  will  suffice.  In  speak- 
ing of  the  standard  to  be  used  in  weighing  the  evidence  as 
to  whether  a  certain  hospital  was  an  "  annoyance  "  to  neigh- 
boring inhabitants,  he  said :  "  *  Annoyance  '  is  a  wider  term 
than  nuisance,  and  if  you  find  a  thing  which  really  troubles 
the  mind  and  pleasure,  not  of  a  fanciful  person  or  of  a 
skilled  person  who  knows  the  truth,  but  of  the  ordinary 
sensible  English  inhabitant  of  a  house,  —  if  you  find  there 
is  anything  which  disturbs  his  reasonable  peace  of  mind, 
that  seems  to  me  to  be  an  annoyance,  although  it  may  not 
appear  to  amount  to  physical  detriment  or  discomfort.  You 
must  take  sensible  people;  you  must  not  take  fanciful  peo- 
ple on  the  one  side  or  skilled  people  on  the  other;  and  that 
is  the  key  as  it  seems  to  me  of  this  case.  Doctors  may  be 
able  to  say,  and,  for  anything  I  know,  to  say  with  certainty, 
that  there  is  no  sort  of  danger  from  this  hospital  to  the 
surrounding  neighborhood.  But  the  fact  that  some  doctors 
think  there  is,  makes  it  evident  at  all  events  that  it  is  not 
a  very  unreasonable  thing  for  persons  of  ordinary  appre- 
hension to  be  troubled  in  their  minds  about  it.  And  if  it 
is  not  an  unreasonable  thing  for  any  ordinary  person  who 
lives  in  the  neighborhood  to  be  troubled  in  his  mind  by  the 
apprehension  of  such  risk,  it  seems  to  me  that  there  is  danger 
of  annoyance,  though  there  may  not  be  a  nuisance."  Tod- 
Heatly  v.  Benham,  40  Ch.  D.  611.  No  better  illustration 
of  the  triumph  of  reason  and  common  sense  over  technicali- 
ties can  be  found  in  the  reports  than  Bowen's  judgment  in 
Ratcliffe  v.  Evans,  (1892)  2  Q.  B.  529. 

The  Maxim-Nordenfelt  case  and  the  Mogul  Steamship 
case  are  probably  his  greatest  efforts,  illustrating  as  they 
do  all  his  peculiar  powers.  For  a  brief  example  of  clear 


822  V.     BENCH    AND    BAR 

exposition  reference  may  be  made  to  the  case  of  Smith  v. 
Land  &  House  Property  Corporation,  28  Ch.  D.  14,  where 
the  vendee  under  a  contract  for  the  sale  of  certain  property 
resisted  an  action  for  specific  performance  on  the  ground 
of  misrepresentation,  the  vendor  having  stated  that  the 
property  was  let  to  "  a  most  desirable  tenant,"  when  in  fact 
the  tenant  had  been  in  arrears  on  his  last  quarter's  rent, 
and  soon  afterward  went  into  liquidation :  "  It  is  material 
to  observe  that  it  is  often  fallaciously  assumed  that  a  state- 
ment of  opinion  cannot  involve  the  statement  o*f  a  fact.  In 
a  case  where  the  facts  are  equally  well  known  to  both  parties, 
what  one  of  them  says  to  another  is  frequently  nothing  but 
an  expression  of  opinion.  The  statement  of  such  opinion 
is  in  a  sense  a  statement  of  a  fact  about  the  condition  of 
a  man's  own  mind,  but  only  of  an  irrelevant  fact,  for  it  is 
of  no  consequence  what  the  opinion  is.  But  if  the  facts  are 
not  equally  well  known  to  both  sides,  then  a  statement  of 
opinion  by  the  one  who  knows  the  facts  best  involves  very 
often  a  statement  of  a  material  fact,  for  he  impliedly  states 
that  he  knows  facts  which  justify  his  opinion.  Now  a 
landlord  knows  the  property  is  let  to  a  most  desirable  ten- 
ant; other  persons  either  do  not  know  them  at  all  or  do 
not  know  them  equally  well,  and  if  the  landlord  says  that 
he  considers  that  the  relations  between  himself  and  his  tenant 
are  satisfactory,  he  really  avers  that  the  facts  peculiarly 
within  his  knowledge  are  such  as  to  render  that  opinion 
reasonable.  Now  are  the  statements  here  statements  which 
involve  such  a  representation  of  material  facts?  They  are 
statements  on  a  subject  as  to  which  prima  facie  the  vendors 
know  everything  and  the  purchasers  nothing.  The  vendors 
state  that  the  property  is  let  to  a  most  desirable  tenant; 
what  does  that  mean?  I  agree  that  it  is  not  a  guaranty 
that  the  tenant  will  go  on  paying  his  rent,  but  it  is  to  my 
mind  a  guaranty  of  a  different  sort,  and  amounts  at  least 
to  an  assertion  that  nothing  has  occurred  in  the  relations 
between  the  landlord  and  the  tenant  which  can  be  considered 
to  make  the  tenant  an  unsatisfactory  one.  That  is  an  asser- 
tion of  a  specific  fact.  Was  it  a  true  assertion?  Having 
regard  to  what  took  place  between  Lady  Day  and  Mid- 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  823 

summer,  I  think  it  was  not.  ...  In  my  opinion  a  tenant 
who  had  paid  the  last  quarter's  rent  by  driblets  under  pres- 
sure must  be  regarded  as  an  undesirable  tenant." 

His  subtlety  in  legal  analysis  may  be  seen  to  good  advan- 
tage in  Le  Lievre  v.  Gould  and  Angus  v.  Clifford.  What 
could  be  clearer,  to  give  a  single  quotation,  than  his  state- 
ment in  Badeley  v.  Consolidated  Bank,  38  Ch.  D.  262,  of 
the  manner  in  which  the  lower  court  had  gone  wrong  on  an 
issue  of  partnership :  "  The  question  is  whether  there  is  a 
joint  business  or  whether  the  parties  are  carrying  on  busi- 
ness as  principals  and  agents  for  each  other.  Now  where 
has  Mr.  Justice  Stirling  gone  wrong?  He  has  gone  wrong 
because  he  has  not  followed  that  test.  What  he  has  done 
is  this.  He  has  taken  one  of  the  circumstances  which  in  many 
cases  affords  an  ample  guide  to  truth;  he  has  taken  that 
circumstance  as  if,  taken  alone,  it  shifted  the  onus  of  proof 
—  as  if  it  raised  a  presumption  of  partnership  —  and  then 
he  has  looked  about  over  the  rest  of  the  contract  to  see  if 
he  could  find  anything  which  rebutted  that  presumption. 
Now  that  cannot  be  a  right  way  of  dealing  with  the  case. 
You  have  a  group  of  facts  —  A,  B,  C,  D,  E  and  F  —  and 
you  want  to  know  the  right  conclusion  to  draw  from  them. 
The  right  way  is  to  weigh  the  facts  separately  and  together, 
and  to  draw  your  conclusion.  It  is  not  to  take  A,  and  say 
that  if  A  stood  alone  it  would  shift  the  onus  of  proof,  and 
then  to  look  over  B,  C,  D,  E  and  F  and  see  if  the  remainder 
of  the  proof  is  sufficient  to  rebut  the  presumption  supposed 
to  be  raised." 

Besides  the  Maxim-Nordenfelt  case,  see  Finlay  v.  Chirney, 
Dashwood  v.  Magniac,  Steinman  v.  Angier  Line  and  Bruns- 
den  v.  Humphrey,  for  applications  of  the  historical  method. 
Allcard  v.  Skinner  is  one  of  the  finest  specimens  of  his  style 
at  its  best.  Borthwick  v.  Evening  Post,  Hutton  v.  West 
Cork  Ry.  .Co.,  and  the  Carbolic  Smoke  Ball  case  are  char- 
acteristic specimens  of  his  colloquial  style.  Whatever  the 
form  of  the  argument  may  be  —  whether  pure  development 
of  principle  without  the  citation  of  a  single  authority  (Afl- 
card  v.  Skinner),  or  elaborate  analysis  and  review  of  a  mass 
of  conflicting  cases  (Phillips  v.  Homfray,  Mitchell  i'.  Barley 


824  V.     BENCH    AND    BAR 

Main  Colliery  Co. )  ;  a  perfect  example  of  systematic  logic 
(Ratcliffe  v.  Evans,  Quartz  Hill  Gold  Mining  Co.  v.  Eyre), 
or  a  series  of  detailed  answers  to  specific  points  urged  in 
argument  (Carlill  v.  Carbolic  Smoke  Ball  Co.);  statutory 
construction  (Hewlett  v.  Allen,  Thomas  v.  Quartermaine), 
or  argument  on  the  facts  (Medawar  v.  Grand  Hotel  Co., 
Abrath  v.  Northeastern  Ry.  Co.) — we  invariably  find  the 
same  characteristic  precision,  sense  of  proportion,  force  and 
completeness  of  logic.  Whatever  the  form,  the  result  was 
well  described  by  him  in  the  course  of  his  opinion  in  Re 
Portuguese,  etc.,  Mines,  45  Ch.  D.  60:  "As  soon  as  one 
applies  one's  mind  to  dissect  the  ingenious  argument,  the 
light  breaks  through  and  makes  the  case  perfectly  plain."  l 

(c)   The  House  of  Lords 

The  membership  of  the  House  of  Lords  as  a  judicial  tri- 
bunal is  confined  by  the  Judicature  Act  to  Lords  of  Appeal, 
i.  e.,  the  Lord  Chancellor  of  Great  Britain,  Lords  of  Appeal 
in  Ordinary  (limited  to  four),  and  peers  who  have  held  high 

1  For  Lord  Bowen's  substantial  contributions  to  English  law  the  fol- 
lowing cases  may  be  cited: 

Maxim-Nordenfelt  Gun  and  Ammunition  Co.  v.  Nordenfelt,  (1893)  1 
Ch.  631,  which  settled  the  law  as  to  contracts  in  restraint  of  trade; 
Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  on  the  limits  of 
trade  selfishness  by  way  of  combination  to  exclude  rivals;  Thomas  v. 
Quartermaine,  18  Q.  B.  D.  685,  on  the  duty  of  owners  of  premises,  and 
the  doctrine  volenti  non  fit  injuria;  Le  Lievre  v.  Gould,  (1893)  1  Q.  B. 
491,  on  the  limits  of  the  law  of  negligence;  Ratcliffe  v.  Evans,  (1892) 
2  Q.  B.  524,  on  the  evidence  admissible  to  sustain  an  action  for  defama- 
tion; Finlay  v.  Chirney,  20  Q.  B.  D.  494,  and  Phillips  v.  Homfray,  24 
Ch.  D.  453,  .on  the  maxim  actio  personal!*  moritur  cum  persona;  Dai- 
ton  v.  Angus,  6  App.  Cas.  779,  on  the  right  to  subjacent  support;  Car- 
lill v.  Carbolic  Smoke  Ball  Co.,  (1893)  1  Q.  B.'  256,  on  the  essential 
requisites  to  the  formation  of  a  contract;  Cochrane  r.  Moore,  25  Q.  B. 
D.  57,  on  the  vexed  question  of  the  passing  of  property  by  voluntary 
gift;  Smith  v.  Land  &  House  Property  Corporation,  28  Ch  D  7  oh 
actionable  misrepresentation;  Re  Hodgson,  31  Ch.  D.  177,  on  the  rights 
in  equity  of  creditors  of  joint  debtors;  Quartz  Hill  Gold  Mining  Co. 
v.  Eyre,  11  Q.  B.  D,  674,  on  malicious  prosecution  as  a  cause  of  action; 
Brunsden  t>.  Humphrey,  14  Q.  B.  D.  141,  and  Mitchell  v.  Darlev  Main 
Colliery  Co.,  14  Q.  B.  D.  125,  on  the  doctrine  of  res  judirniae;  'Jacobs 
v.  Credit  Lyonnaise,  12  Q.  B.  D.  598,  on  the  lex  loci  contractus  and  vis 
major;  Johnstone  v.  Milling,  16  Q.  B  D.  460,  on  the  limits  of  repudia- 
tion as  a  breach  of  contract;  Merivale  v.  Carson,  20  Q.  B.  D.  275,  on 
the  distinction  between  fair  public  comment  and  privileged  communica- 
tions in  the  law  for  libel ;  Newbigging  v.  Adam,  34  Ch.  D.  582,  on  relief 


SO.     VEEDER:  A  CENTURY  OF  JUDICATURE   825 

judicial  office.  High  judicial  office  means  the  office  of  Lord 
Chancellor  of  Great  Britain  or  Ireland,  of  a  paid  judge  of 
the  Judicial  Committee  of  the  Privy  Council,  or  of  a  judge 
of  one  of  the  superior  courts  of  Great  Britain  or  Ireland. 
As  a  judicial  tribunal  the  House  reached  its  highest  useful- 
ness under  the  Judicature  Act.  With  a  membership  defined 
by  statute,  with  a  reasonable  assurance  of  regular  attend- 
ance (brought  about  by  relieving  the  lord  chancellor  from 
his  ancient  duties  as  a  judge  of  first  instance),  with  the  ap- 
pointment of  paid  judges  as  lords  in  ordinary,  and  the  eleva- 
tion to  the  peerage  of  several  eminent  and  experienced 
judges,  the  composition  of  the  court  has  given  much  satis- 
faction. In  sheer  ability,  with  Cairns,  Selborne  and  Hatherley 
in  equity,  and  Blackburn,  Bramwell,  Watson  and  Herschell 
in  common  law,  no  other  English  court  has  ever  equalled  it. 
During  this  period  there  have  been  only  four  chancellors. 
Cairns,  Selborne,  Herschell  and  Halsbury.  Cairns  lived 
until  1885,  Selborne  and  Herschell  almost  to  the  end  of  the 
century.  The  most  distinguished  English  lords  have  been 
Blackburn,  Bramwell,  Penzance,  Field,  Macnaghten l  and 
Davey.  Untimely  death  deprived  the  court  of  the  services 
of  two  of  its  most  promising  members,  Hannen  and  Bowen. 
Watson  was  the  ablest  of  the  Scotchmen,  the  others  being 
Gordon  and  Shand.  O'Hagan  ranks  at  the  head  of  the  Irish 

in  equity  in  cases  of  fraud  and  misrepresentation;  Angus  v.  Clifford, 
(1891)  2  Ch.  449,  on  actionable  misrepresentaion ;  Allcard  v.  Skin- 
ner, 36  Ch.  D.  145,  on  undue  influence;  Speight  v.  Gaunt,  22  Ch.  D.  727, 
on  the  duties  of  trustees ;  Hammond  v.  Bussey,  20  Q.  B.  D.  93,  applying 
the  doctrine  of  Hadley  v.  Baxendale,  9  Ex.  341 ;  Castellian  v.  Preston, 
11  Q.  B.  D.  397,  on  the  recovery  under  fire  insurance  policies;  Stein- 
man  v.  Angler  Line,  (1891)  1  Q.  B.  619,  on  recovery  under  a  bill  of 
lading  for  loss  by  theft;  Svensden  v.  Wallace,  13  Q.  B.  D.  69,  on  the 
scope  of  general  average  contribution;  Abrath  v.  Northeastern  Ry.  Co., 
11  Q.  B.  D.  440,  on  the  nature  of  the  burden  of  proof;  Hutton  v.  West 
Cork  Ry.  Co.,  23  Ch.  D.  654,  on  the  corporate  power  to  remunerate  di- 
rectors 'for  past  services;  Baroness  Wenlock  v.  River  Dee  Co.,  36  Ch. 
1).  684,  on  the  limits  of  the  corporate  capacity  to  contract;  Re  Portu- 
guese Consolidated  Copper  Mines,  45  Ch.  D.  16,  on  the  doctrine  of  rati- 
fication; British  Mutual  Banking  Co.  v.  Charnwood  Forest  Ry.  Co., 
18  Q.  B.  D.  714,  on  the  liability  for  fraudulent  acts  of  an  agent. 

'Solomon  v.  Solomon,  (1897)  A.  C.  22;  Ooregum  Gold  Mining  Co. 
v  Roper,  (1892)  A.  C.  125;  Nordenfelt  ».  Maxim-Nordenfelt  Co. 
(1894)  A.  C.  535;  Tailby  t>.  Official  Receiver,  13  App.  Cas.  523;  Trevor 
v.  Wentworth,  12  App.  Cas.  409;  Drummond  v.  Van  Ingen,  12  App.  Cas. 
284. 


826  V.     BENCH   AND    BAR 

representation,   which   includes   Fitzgerald,   Ashbourne   and 
Morris. 

In  his  obituary  eulogy  on  Lord  Selborne  in  the  House  of 
Lords,  Lord  Rosebery  felicitously  compared  Selborne  with 
those  great  ecclesiastics  by  whom  equity  was  originally  ad- 
ministered. "  There  was  something  in  his  austere  simplicity 
of -manner  which  recalled  those  great  lawyers  of  the  middle 
ages  who  were  also  churchmen,  for  to  me  Selborne  always 
embodied  that  great  conception  and  that  great  combination." 
Selborne  (1872-74;  1880-85)  was  not  only,  like  Cairns,  an 
ardent  churchman ;  he  had  also  something  of  the  ecclesias- 
tical cast  of  mind  and  impassive  manner.  But  he  had,  above 
all,  that  intuitive  insight  into  legal  principles  and  power  of 
grasping  and  expounding  facts  which  are  certain  tests  of 
legal  genius.  With  intellectual  gifts  of  the  highest  order 
he  combined  habits  of  patient  industry,  without  which  intui- 
tions are  deceitful  and  gifts  of  exposition  vain.  The  terms 
in  which  a  contemporary  observer  described  his  characteris- 
tics at  the  bar,  bring  out  clearly  the  qualities  upon  which 
his  success  was  founded.  "  At  this  time  there  were  three 
great  advocates  before  all  others,  Bethel  [Lord  Westbury], 
Palmer  [Lord  Selborne],  Cairns.  Each  of  them  had  his  own 
points  of  superiority,  though  each  was  very  good  at  all 
points.  Cairns  excelled  in  strong  common  sense  and  broad, 
lucid  arrangement  of  facts ;  Bethel  in  force  of  exposition  and 
direct  attack  on  his  opponent,  whether  counsel  or  judge; 
Palmer  in  power  of  work,  in  knowledge  of  his  briefs,  in  ready 
memory  and  vast  resources  of  case  law,  in  subtlety  and  great 
skill  in  addressing  himself  to  unforeseen  emergencies.  He 
could  perform  the  most  difficult  operations  of  strategy, 
changing  front  in  the  face  of  the  enemy.  It  was  an  admi- 
rable sight  to  see  him  turning  the  flank  of  a  hostile  position 
taken  up  by  the  court,  such  as  Bethel  would  have  attacked 
in  front ;  rounding  off  an  angle  here,  attenuating  a  difference 
there;  bringing  some  previously  neglected  portion  of  the 
case  into  relief,  relegating  others  to  the  background,  and 
so  restoring  the  battle.  What  gave  Palmer  the  superiority 
in  these  movements  (apart  from  the  great  versatility  and 
adaptability  of  his  mind  and  his  complete  command  of 


20.     VEEDER:  A  CENTURY  OF  JUDICATURE  827 

temper)  was  above  all  his  perfectly  accurate  and  ready 
knowledge  of  every  detail  of  his  case." 

His  marked  characteristic  as  a  judge  was  his  profound 
knowledge  of  case  law  and  his  masterly  dealing  with  it.  In 
this  respect  he  has  seldom  been  surpassed.  It  was  his  habit 
to  extract  the  ruling  principle  of  prior  decisions,  and  then  to 
trace  the  development  of  the  branch  of  law  under  discussion.1 
From  his  conservative  regard  for  precedent  he  was  essentially 
a  sound  judge.  He  was  inferior  to  Cairns  in  terseness,  clear- 
ness and  force  because  he  indulged  himself  in  his  remarkable 
gift  of  subtlety.  Beyond  certain  limits  subtlety  ceases  to 
be  desirable  in  the  exposition  of  practical  rules  of  human 
conduct.  While  many  of  his  opinions  are  masterpieces  of 
luminous  reasoning,  he  had  too  often  a  habit  of  pursuing  a 
fine  train  of  reasoning  on  a  matter  collateral  to  the  main 
issue.  This  undue  prominence  of  matters  of  minor  import- 
ance and  trains  of  reasoning  running  off  into  collateral  mat- 
ters, explain  the  absence  of  proportion  which  characterizes 
some  of  his  work.  But  his  statements  of  legal  propositions 
are  carefully  worded  with  a  far  seeing  regard  for  the  future, 
and  few  hasty  dicta  are  to  be  found  in  his  opinions. 

Although  he  was  great  in  council  and  dextrous  in  debate, 
he  did  not  display  in  political  life  the  marvelous  adaptability 
which  was  so  conspicuous  in  Cairns.  In  some  respects  he 
would  seem  to  have  been  better  equipped  for  public  life  than 
his  great  rival.  He  had  larger  and  more  genial  sympathies, 
and  his  flowing  and  diffuse  style  was  more  apt  to  impress 
the  public  mind  than  the  highly  concentrated  manner  of 
Cairns.  But  his  ecclesiastical  subtlety  again  hampered  his 
influence.  And  he  was  prone  to  rely  upon  considerations 
too  purely  moral  and  speculative  to  exert  any  considerable 
influence  on  public  opinion.  Hence  the  arguments  by  which 
he  attempted  to  support  a  conclusion  were  often  far  more 
conspicuously  vulnerable  and  far  more  offensive  to  his 
adversaries  than  the  conclusion  itself.  As  a  law  reformer 
alone  Selborne  takes  a  high  rank.  The  reforms  inspired 
by  Brougham  in  1832  had  been  followed  at  fitful  in- 

1  Aylesford  v.  Morris,  8  Ch.  App.  484 ;  Noble  v.  Willock,  8  Ch.  App. 

778. 


828  F.     BENCH   AND   BAR 

tcrvals  by  the  successive  acts  which,  from  1847  onward, 
under  the  guidance  of  Cranworth,  Westbury  and  Cairns,  had 
eradicated  most  of  the  perversities  of  ancient  procedure. 
But  the  most  radical  and  comprehensive  legal  reform  of  the 
century  was  accomplished  by  Selborne  in  the  passage  of  the 
Judicature  Acts.1 

When  Blackburn  (1876-87)  was  appointed  one  of  the  first 
lords  of  appeal  in  ordinary  under  the  Judicature  Act  it 
afforded  satisfactory  evidence  to  the  profession  that  a  new 
era  in  the  court  of  final  appeal  had  in  reality  begun.  Black- 
burn had  given  abundant  evidence  of  his  complete  mastery 
of  the  common  law,  and  he  soon  showed  that  his  grasp  of 
Scotch  and  colonial  and  ecclesiastical  law  was  no  less  strong. 
In  chancery  appeals  he  did  not  hesitate  to  express  inde- 
pendent views,  but  he  was  naturally  overshadowed  by  the 
authority  of  Cairns  and  Selborne.  In  common  law  appeals 
his  pre-eminence  was  undisputed.  It  was  not  until  the  last 
year  or  two  of  Blackburn's  service  that  Watson  began  to 
take  a  prominent  part  in  English  appeals,  and  the  sturdy 
Bramwell  did  not  become  a  member  of  the  court  until  1882. 

Lord  Watson  (1880-99),  the  ablest  judge  contributed  by 

1  Some  of  Selborne's  more  important  opinions  are:  Maddison  v. 
Alderson,  8  App.  Cas.  467  (statute  of  frauds)  ;  Debenham  r.  Mellon,  6 
App.  Cas.  24  (wife's  necessaries)  ;  Dalton  v.  Angus,  6  App.  Cas.  740 
(easements;  Sewell  v.  Burdick,  10  App.  Cas.  74  (bill  of  lading); 
Pearks  v.  Moseley,  5  App.  Cas.  714  (bequest)  ;  Lyell  v.  Kennedy,  14  App. 
Cas.  448  (real  property)  ;  Sturla  v.  Freccia,  5  App.  Cas.  623  (evidence) ; 
Speight  ».  Gaunt,  9  App.  Cas.  1  (trust)  ;  Bank  of  England  v.  Vagliano, 
(1891)  A.  C.  107;  Duncan  ».  Wales  Bank,  6  App.  Cas.  8  (bill  of  ex- 
change) ;  Harvey  ».  Farnie,  8  App.  Cas.  43  (Scotch  divorce)  ;  Mackon- 
ochie  v.  Penzance,  6  App.  Cas.  424  (ecclesiastical  law)  ;  Whyte  v.  Pollock, 
7  App.  Cas.  400  (will);  Mayor  of  London  v.  London  Bank,  6  App.  Cas. 
393  (attachment)  ;  Mersey  Steel  Co.  v .  Naylor,  9  App.  Cas.  434  (con- 
tracts) ;  London,  etc.,  Ry.  ».  Truman,  11  App.  Cas.  45;  Drummond  v. 
Van  Ingen,  12  App.  Cas.  284;  Ewing  v.  Orr-Ewing,  10  App.  Cas.  499; 
Minors  v.  Battison,  1  App.  Cas.  428;  Sarf  v.  Jardine,  7  App.  Cas.  345; 
Singer  Mfg.  Co.  v.  Loog,  8  App.  Cas.  15;  Kendal  v.  Hamilton,  4  App. 
Cas.  504;  Brogden  v.  Met.  Ry.,  2  App.  Cas.  666;  Capital  and  Counties 
Bank  v.  Henty,  7  App.  Cas.  741 ;  Erlanger  v.  Phosphate  Co.,  3  App.  Cas. 
1218;  Dublin  Ry.  Co.  v.  Slattery,  3  App.  Cas.  1155;  Lyon  v.  Fishmonger's 
Co.,  1  App.  Cas.  662;  Clyde  Navigation  Co.  v.  Barclay,  1  App.  Cas.  790; 
Bradlaugh  v.  Clarke,  8  App.  Cas.  345 ;  Foakes  v.  Beer,  9  App.  Cas.  605 ; 
Earl  of  Aylesford  v.  Morris,  8  Ch.  App.  484;  Ex.  parte  Watkins,  8  Ch. 
520;  Cooper  v.  McDonald,  16  Eq.  258;  Ayerst  v.  Jenkins,  16  Eq.  275; 
Freke  v.  Lord  Carbery,  16  Eq.  461;  Noble  t>.  Willock,  8  Ch.  App.  778; 
Cooper  v.  Macdonald,  'l6  Eq.  258. 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  829 

Scotland  to  the  House  of  Lords,  was  one  of  the  most  remark- 
able judicial  characters  of  his  time.  In  the  domain  of  Scots 
law,  to  which  his  predecessors  had  mainly  confined  their  at- 
tention, he  displayed  at  the  outset  his  eminent  qualifications 
for  judicial  office.  But  Watson  was  not  content  to  play  a 
minor  part.  He  proceeded  to  study  English  law;  and,  as 
his  confidence  in  his  knowledge  increased,  the  modest  expres- 
sion of  opinion  with  which  he  had  been  content  in  his  earlier 
cases,  gave  way,  shortly  before  Blackburn's  retirement,  to 
those  masterly  expositions  of  English  law  for  which,  after 
the  death  of  Herschell,  he  was  unsurpassed  by  any  of  his 
associates.  It  is  only  necessary  to  mention  in  support  of 
this  statement  such  cases  as  Smith  v.  Baker,  Allen  v.  Flood, 
Clarke  v.  Carfin  Coal  Company,  Solomon  v.  Solomon,  Mac- 
donald  v.  Whitfield,  Nordenfelt  v.  Maxim-Nordenfelt,  and 
Mogul  Steamship  Co.  v.  McGregor.  His  long  and  splendid 
service  in  the  Judicial  Committee  of  the  Privy  Council  would 
alone  place  him  in  the  front  rank  of  modern  judges.  His 
opinions  in  Le  Mesurier  v.  Le  Mesurier  and  Abdul  Messih  v- 
Fassa,  on  the  intricate  subject  of  domicile,  to  cite  only  two 
examples,  are  as  luminous  as  they  are  exhaustive.  In  eccle- 
siastical appeals,  also,  Presbyterian  though  he  was,  he  took 
a  prominent  part. 

His  knowledge  of  English  case  law  was,  under  the  cir- 
cumstances, extraordinary ;  yet  it  can  hardly  be  said  to  have 
exceeded  his  grasp  of  principle  and  certainty  of  judgment. 
Witness  his  sensible  and  suggestive  reflections  in  refusing 
to  adhere  to  a  strict  observance  of  the  old  doctrine  with  re- 
spect to  restraint  of  trade :  "  A  series  of  decisions  based 
upon  grounds  of  public  policy,  however  eminent  the  judges 
by  whom  they  were  delivered,  cannot  possess  the  same  bind- 
ing authority  as  decisions  which  deal  with  and  formulate 
principles  which  are  purely  legal.  The  course  of  policy  pur- 
sued by  any  country  in  relation  to  and  for  promoting  the 
interests  of  its  commerce  must,  as  time  advances,  and  as  its 
commerce  thrives,  undergo  change  and  development  from 
various  causes  which  are  altogether  independent  of  the  ac- 
tion of  its  courts.  In  England,  at  least,  it  is  beyond  the 
jurisdiction  of  her  tribunals  to  mould  and  stereotype  national 


830  F.     BENCH    AND    BAR 

policy.  Their  function  when  a  case  like  the  present  is 
brought  before  them  is,  in  my  opinion,  not  necessarily  to 
accept  what  was  held  to  have  been  the  rule  of  policy  a  hun- 
dred or  a  hundred  and  fifty  years  ago,  but  to  ascertain,  with 
as  near  an  approach  to  accuracy  as  circumstances  permit, 
what  is  the  rule  of  policy  for  the  then  present  time.  When 
that  rule  has  been  ascertained  it  becomes  their  duty  to  refuse 
to  give  effect  to  a  private  contract  which  violates  the  rule 
and  would,  if  judicially  enforced,  prove  injurious  to  the 
community."  Nordenfelt  v.  Maxim-Nordenfelt,  (1894)  A. 
C.  514. 

To  literary  form  and  refinement  of  style  Watson  appears 
to  have  been  wholly  indifferent.  Clear,  direct  and  compact 
in  expression,  his  opinions  are  nevertheless*  not  without  charm 
from  simplicity  of  diction  and  the  occasional  use  of  the 
quaint  legal  phraseology  of  his  native  land.  Probably  the 
best  expression  of  this  is  his  interesting  opinion  in  the  matri- 
monial case  of  Mackenzie  v.  Mackenzie,  (1895)  A.  C.  384. 
"  There  can  be  hardly  a  more  odious  form  of  cruelty,"  he 
says  in  one  place,  "  than  a  deliberate  attempt  to  wound  the 
feelings  of  a  mother  through  her  affection  for  her  infant 
child.  It  is  nevertheless  true  that  the  law  of  Scotland  per- 
mits a  married  man  to  gratify  his  taste  for  that  species  of 
cruelty,  subject  to  these  conditions,  that  it  must  be  practiced 
upon  his  own  wife,  and  that  he  must  stop  short  of  injuring 
her  health  of  mind  or  body  or  of  rendering  her  existence 
intolerable.  How  far  he  can  carry  his  experiments  without 
exceeding  the  limits  so  prescribed,  and  thereby  becoming 
guilty  of  legal  saevitia,  must  depend  very  much  upon  the 
circumstances  of  the  case,  and,  in  particular,  upon  the  vic- 
tim's capacity  of  endurance." 

In  the  House  of  Lords  Bramwell  (1882-92)   exerted,  in 

'Lord  Watson's  ablest  efforts  are:  English  Appeals:  Allen  v.  Flood, 
(1898)  A.  C.  1;  Smith  v.  Baker,  (1891)  A.  C.  325;  Scholfield  v.  Londes- 
borough,  (1896)  A.  C.  514;  Johnson  v.  Lindsay,  (1891)  A.  C.  371;  Nor- 
denfelt v.  Maxim-Nordenfelt,  (1894)  A.  C.  514";  Mogul  Steamship  Co.  t>. 
McGregor,  (1892)  A.  C,  52;  The  Bernina,  13  App.  Cas.  1;  Solomon  v. 
Solomon,  (1897)  A.  C.  22;  Trevor  ».  Whitworth,  12  App.  Cas.  409;  Bank 
of  England,  r.  Vagliano,  (1891)  A.  C.  107;  Ooregum  Gold  Mining  Co. 
r.  Roper,  (1892)  A.  C.  25;  Tailhy  r.  Official  Receiver,  13  App.  Cas. 
523;  Wakelin  v.  London  and  S.  W.  Ry.  Co.,  12  App.  Cas.  41;  London 


80.     VEEDER:  A  CENTURY  OF  JUDICATURE  831 

the  main,  the  same  general  influence  for  good  that  character- 
ized his  earlier  judicial  service.  Perhaps  his  unconventional- 
ity  was  even  more  conspicuous  in  his  new  surroundings. 
Although  he  was  to  some  extent  overshadowed  by  the  com- 
manding authority  of  Blackburn,  he  was  sturdily  independent 
in  his  views.  And  even  when  wrong  —  for  he  was  fcften  in 
the  minority  —  he  used  his  mother-tongue  with  the  same 
directness  and  dry  humor.  At  a  very  advanced  age  he 
showed  no  decay  in  mental  power;  his  strong  opinion  in 
the  Vagliano  case  was  delivered  in  his  eighty-second  year. 
But  it  is  observable  that  his  personal  views  on  certain  topics 
which  had  not  commanded  judicial  assent  became  in  later 
years  more  pronounced  and  extreme. 

Lord  Herschell's  conspicuous  judicial  service  in  the  House 
of  Lords  (1886-99)  entitles  him  to  a  place  among  the  great 
judges  of  the  last  quarter  of  the  century.  If  he  fell  short 
of  Cairns'  breadth  of  mind  and  lacked  Selborne's  subtlet}', 
he  had,  nevertheless,  in  large  measure,  the  qualities  which 
make  for  judicial  excellence.  His  most  prominent  character- 
istics were  indefatigable  industry,  thoroughness  and  accu- 
racy. Not  even  Selborne  more  completely  exhausted  a  sub- 
ject than  Herschell  did  in  such  leading  cases  as  Derry  v. 
Peek,  Bank  of  England  v,  Vagliano,  Allen  v.  Flood,  London 
Joint  Stock  Bank  v.  Simmons,  British  South  Africa  Co.  v. 
Mozambique,  Russell  v.  Russell,  Trego  v.  Hunt,  and  the 
Maxim-Nordenfelt  case.  In  his  zeal  to  leave  no  consideration 
unnoticed,  he  sometimes  seems  to  wander  around  the  issue, 
instead  of  aiming  directly  at  it,  as  Cairns  did.  But  this  fault 
is  confined  mostly  to  his  earlier  opinions ;  his  work  improved 
steadily  in  structure  and  finish,  and  his  best  efforts  are 

Joint  Stock  Bank  v.  Simmons,  (1892)  A.  C.  201 ;  Bradford  Corporation 
v.  Pickles,  (1895)  A.  C.  595;  Lyell  ».  Kennedy,  9  App.  Cas.  89;  Enraght 
v.  Lord  Penzance,  7  App.  Cas.  240. 

Privy  Council  Appeals:  Le  Mesurier  v.  Le  Mesurier,  (1895)  A.  C. 
517;  Abdul  Messih  v.  Farra,  13  App.  Cas.  431;  Huntington  v.  Attrill, 
(1893)  A.  C.  150;  Gera  v,  Ciantra,  12  App.  Cas.  557;  Haggard  v.  Pelicier 
Freres,  (1892)  A.  C.  61;  Macdonald  v.  Whitfield,  8  App.  Cas.  733. 

Scotch  Appeals:  Mackenzie  v.  Mackenzie,  (1895)  A.  C.  384;  Collins 
v.  Collins,  9  App.  Cas.  205;  Ewing  r.  Orr-Ewing,  10  App.  Cas.  499; 
Clarke  v.  Carfin  Coal  Co.,  (1891)  A.  C.  412;  Commissioners  of  Income 
Tax  P.  Pemsel,  (1891)  A.  C.  531;  Palmer  v.  Wicke,  (IttH)  A.  C.  318; 
Caird  P.  Sime,  12  App.  Cas.  32<>;  Hothes  r.  Kirkcaldy  Water  Works 
Commissioners,  7  App.  Cas.  694;  Harvey  p.  Farnie,  8  App.  Cas.  62. 


832  V.     BENCH    AND    BAR 

among  the  highest  models  of  judicial  exposition.  He  was 
a  man  of  broad  views.  The  basis  of  his  very  able  opinion 
in  the  great  case  of  Allen  v.  Flood,  (1808)  A.  C.  1,  is  an 
illustration :  "  I  do  not  doubt  that  every  one  has  a  right  to 
pursue  his  trade  or  employment  without  '  molestation  '  or 
'  obstruction,'  if  those  terms  are  used  to  imply  some  act  in 
itself  wrongful.  This  is  only  a  branch  of  a  much  wider 
proposition,  namely,  that  every  one  has  a  right  to  do  any 
lawful  act  he  pleases  without  molestation  or  obstruction.  If 
it  be  intended  to  assert  that  an  act  not  otherwise  wrongful 
always  becomes  so  if  ft  interferes  with  another's  trade  or  em- 
ployment, and  needs  to  be  excused  or  justified,  I  say  that 
such  a  proposition  in  my  opinion  has  no  solid  foundation 
in  reason  to  rest  upon.  A  man's  right  not  to  work  or  not 
to  pursue  a  particular  trade  or  calling,  or  to  determine  when 
or  where  or  with  whom  he  will  work,  is  in  law  a  right  of  pre- 
cisely the  same  nature,  and  entitled  to  just  the  same  protec- 
tion, as  a  man's  right  to  trade  or  work.  They  are  but  ex- 
amples of  that  wider  right  of  which  I  have  already  spoken. 
That  wider  right  embraces  also  the  right  of  free  speech.  A 
man  has'  a  right  to  say  what  he  pleases,  to  induce,  to  advise, 
to  exhort,  to  command,  provided  he  does  not  slander  or  de- 
ceive or  commit  any  other  of  the  wrongs  known  to  the  law 
of  which  speech  may  be  the  medium.  Unless  he  is  thus  shown 
to  have  abused  this  right,  why  is  he  to  be  called  upon  to 
excuse  or  justify  himself  because  his  words  may  interfere 
with  some  one  else  in  his  calling?  " 

Herschell  believed  that  it  was  a  judge's  duty  to  interpret 
and  administer  the  law,  not  to  make  it.  He  was  sturdily 
averse  to  the  process  of  refinement  by  means  of  which  par- 
ticular cases  were  withdrawn  from  the  application  of  general 
rules.  A  characteristic  illustration  may  be  found  in  his 
opinion  in  the  celebrated  case  of  Russell  v.  Russell,  (1897) 
A.  C.  460,  where  it  was  sought  to  extend  the  legal  doctrine 
with  respect  to  cruelty  in  matrimonial  relations  so  as  to 
cover  the  facts  of  a  particular  case.  "  The  only  criterion 
of  cruelty  which  I  have  heard  suggested  as  warranting  a 
judgment  for  the  appellant,  is  whether  the  discharge  of  the 
duties  of  married  life  has  become  impossible  owing  to  the 


W.     VEEDER:  A  CENTURY  OF  JUDICATURE  833 

conduct  of  the  respondent.  How  is  the  word  '  impossible ' 
to  be  interpreted  in  the  proposition  thus  stated?  ...  If  it 
be  extended  to  what  is  sometimes  called  '  moral '  impossibil- 
ity, a  proposition  could  scarcely  b'e  conceived  more  elastic. 
It  would  afford  no  sort  of  guide,  but  would,  in  my  opinion, 
unsettle  the  law  and  throw  it  into  hopeless  confusion.  Views 
as  to  what  is  possible  in  this  sense  would  differ  most  widely. 
.  .  .  Not  a  few  would  think  that  the  discharge  of  the  duties 
of  married  life  was  impossible  whenever  love  had  been  re- 
placed by  hatred,  when  insulting  and  galling  language  was 
constantly  used,  when,  in  short,  the  ordinary  marital  rela- 
tion no  longer  prevailed.  One  opinion  may  be  held  by  man}' 
that  it  would  be  well  that  in  all  such  cases  a  judicial  separa- 
tion should  be  granted  —  that  relief  should  always  be  given 
where  the  prospect  of  happiness  so  long  as  the  parties  co- 
habited appeared  hopeless.  But  these  are  considerations  for 
the  legislature,  not  for  the  courts.  .  .  .  Our  duty,  on  the 
present  occasion,  is  to  administer,  not  to  make  the  law.  I 
have  no  inclination  towards  a  blind  adherence  to  precedents. 
I  am  conscious  that  the  law  must  be  moulded  by  adapting 
it  on  established  principles  to  the  changing  conditions  which 
social  development  involves.  But  marital  misconduct  is,  un- 
fortunately, as  old  as  matrimony  itself.  Great  as  have  been 
the  social  changes  which  have  characterized  the  last  century, 
in  this  respect  there  has  been  no  alteration,  no  new  develop- 
ment. I  think  it  is  impossible  to  do  otherwise  than  proceed 
upon  the  old  lines." 

While  he  believed  that  the  amendment  of  the  law  should 
be  left  to  the  legislature,  he  was  not  unmindful  of  the  hard- 
ship often  occasioned  by  the  application  of  established  rules. 
But  he  held  that  "  in  laying  down  a  proposition  of  law  it  is 
necessary  to  keep  in  view  the  consequences,  and  not  to  con- 
template its  operation  in  the  particular  case."  Therefore, 
in  holding,  in  Derry  v.  Peek,  14  A.  C.  376,  that  an  untrue 
statement  made  negligently,  but  with  an  honest  belief  in  its 
truth,  would  not  sustain  an  action  for  deceit,  he  said :  "  I 
have  arrived,  with  some  reluctance,  at  the  conclusion  to  which 
I  have  felt  myself  compelled,  for  I  think  that  those  who  put 
before  the  public  a  prospectus  to  induce  them  to  embark 


834  V.    BENCH   AND   BAR 

their  money  in  a  commercial  enterprise,  ought  to  be  vigilant 
to  see  that  it  contains  such  representations  only  as  are  in 
strict  accordance  with  fact,  and  I  should  be  very  unwilling 
to  give  any  countenance  to  the  contrary  idea.  I  think  there 
is  much  to  be  said  for  the  view  that  this  moral  duty  ought,  to 
some  extent,  to  be  converted  into  a  legal  obligation,  and  that 
the  want  of  reasonable  care  to  see  that  statements,  made 
under  such  circumstances,  are  true,  should  be  made  an  ac- 
tionable wrong.  But  this  is  not  a  matter  fit  for  discussion 
on  the  present  occasion.  If  it  is  to  be  done,  the  legislature 
must  intervene  and  expressly  give  a  right  of  action  in  respect 
of  such  a  departure  from  duty.  It  ought  not,  I  think,  to  be 
done  by  straining  the  law,  and  holding  that  to  be  fraudulent 
which  the  tribunal  feels  cannot  properly  be  so  described.  I 
think  mischief  is  likely  to  result  from  blurring  the  4Jstinction 
between  carelessness  and  fraud,  and  equally  holding  a  man 
fraudulent,  whether  his  acts  can  or  cannot  be  justly  so  desig- 
nated." In  common  with  many  strong  minded  judges,  Lord 
Herschell  was  much  given  to  interrupting  counsel  during 
argument.  His  propensity  in  this  direction  is  said  to  have 
been  temporarily  checked  when,  during  the  hearing  of  the 
case  of  Allen  v.  Flood,  one  of  his  more  conservative  colleagues 
remarked  with  caustic  humor,  "  We  can  all  pretty  well  under- 
stand from  the  present  proceedings  what  amounts  to  molest- 
ing a  man  in  his  business." 

Lord  Halsbury  enjoys  the  double  distinction  of  having 
risen  to  the  woolsack  from  the  criminal  bar,  and  of  having 

1  The  following  are  Lord  Herschell's  ablest  opinions:  Allen  v.  Flood, 
(1898)  A.  C.  1;  Nordenfelt  ».  Maxim-Nordenfelt,  (1894)  A.  C.  535; 
British  South  Africa  Co.  v.  Mozambique,  (1893)  A.  C.  602;  Bank  of 
England  v.  Vagliano,  (1891)  A.  C.  107;  Solomon  v.  Solomon,  (1897) 
A.  C.  22;  Russell  v.  Russell,  (1897)  A.  C.  395;  Smith  v.  Baker,  (1891) 
A.  C.  325;  Deny  r.  Peek,  14  App.  Cas.  359;  The  Bernina,  13  App.  Cas. 
1 ;  Reddaway  v.  Banham,  (1896)  A.  C.  207;  London  Joint  Stock  Bank  v. 
Simmons,  (1892)  A.  C.  201;  Trego  v.  Hunt,  (1896)  A.  C.  7;  Concha  v. 
Concha,  11  App.  Cas.  541;  White  ».  Mellin,  (1895)  A.  C.  155;  Ooregum 
Gold  Mining  Co.  v.  Roper,  (1892)  A.  C.  125;  Trevor  v.  Whitworth,  13 
App.  Cas.  409;  Alexander  v.  Jenkins,  (1892)  1  Q.  B.  797;  Mackenzie  t>. 
Mackenzie,  (1895)  A  C.  388;  Wild  r.  Waywood,  (1892)  1  Q.  B.  783; 
Tabley  v.  Official  Receiver,  13  App.  Cas.  523;  Hawthorn  v.  Fraser, 
(1892)  2  Ch.  27;  Commissioners  of  Income  Tax  v.  Pemsel,  (1891)  A.  C. 
531;  London  County  Council  v.  Erith,  (1893)  A.  C.  562;  Ward  v.  Duns- 
comb,  (1893)  A.  C.  369;  Barnado  v.  McHugh,  (1891)  A.  C.  388;  Wood- 
ward v.  Goulston,  11  App.  Cas.  469;  Makin  v.  Atty  Gen.,  (1894)  A.  C.  57. 


20.     VEEDER:  A  CENTURY  OF  JUDICATURE  835 

held  this  high  office  under  three  administrations.  These  facts 
are,  in  themselves,  evidence  of  varied  ability  and  marked 
force.  If  he  does  not  possess  the  profound  knowledge  of 
equity  which  distinguished  his  more  eminent  predecessors, 
his  wide  experience  at  the  bar  developed  other  gifts  not  less 
essential  than  learning  to  the  successful  discharge  of  the 
multifarious  duties  with  which  the  chancellor  is  now  charged. 
A  distinguished  French  observer  has  described  the  English 
chancellor  as  a  living  image  of  the  Trinity,  embodying  in  his 
own  person  the  three  branches  of  government.  As  a  peer, 
as  speaker  of  the  House  of  Lords,  and  as  a  member  of  the 
cabinet,  he  participates  in  legislation.  As  the  creator  of 
judges,  with  extensive  administrative  duties  in  regard  to  the 
courts,  he  represents  the  executive.  In  his  judicial  capacity 
he  is  president  of  the  Court  of  Appeal  and  of  the  High  Court, 
with  a  statutory  right  of  sitting  as  a  judge  of  first  instance, 
if  he  so  desires.  Many  years  have  passed  since  the  chan- 
cellor sat  as  a  judge  of  first  instance,  and,  except  when  an 
occasional  press  of  business  may  demand  his  presence  in  the 
Court  of  Appeal,  his  judicial  duties  are  now  confined  to  the 
House  of  Lords.  As  presiding  judge  of  the  court  of  final 
appeal,  Lord  Halsbury  has  served  through  many  years  with 
credit  to  himself  and  to  the  satisfaction  of  the  bar.  Among 
colleagues  of  greater  special  acquirements  he  has  displayed 
unfailing  tact  and  self-reliance,  and  the  record  of  his  judicial 
service  reveals  the  good  sense  which  results  from  wide  experi- 
ence with  men  and  affairs.1 

(d)   The  Judicial  Committee  of  the  Privy  Council 

The  Judicial  Committee  of  the  Privy  Council  is  composed 
of  the  Lord  President,  such  members  of  the  Privy  Council 

1  Some  of  the  best  specimens  of  his  powers  are:  Allen  c.  Flood,  (1898) 
A.  C.  1;  Monson  v.  Madam  Tassaud,  63  L.  J.,  Q.  B.  454;  R.  p.  Jackson, 
64  L.  T.  679;  Deny  v.  Peek,  14  App.  Cas.  337;  Membery  v.  Great 
Western  Ry.,  14  App.  Cas.  179;  Great  Western  Ry.  v.  Bunch,  13  App. 
Cas.  31;  London,  etc.,  Ry.  v.  Truman,  11  App.  Cas.  45;  Adam  t>.  New- 
bigging,  13  App.  Cas.  308;  Macdougall  v.  Knight,  60  L.  T.  762;  Cox  v. 
Halles,  63  L.  T.  679;  Bank  of  England  v.  Vagliano,  (1891)  A.  C.  107; 
London  Joint  Stock  Bank  v.  Simmons,  (1892)  A.  C.  201 ;  Mogul  Steam- 
ship Co.  v.  McGregor,  (1892)  A.  C.  25;  Smith  v.  Baker,  (1891)  A.  C, 
325;  Russell  ».  Russell,  (1897)  A.  C.  395. 


836  V.    BENCH   AND   BAR 

as  hold  or  have  held  high  judicial  office,  the  Lords  Justices 
of  Appeal  and  a  limited  number  of  Privy  Councillors  ap- 
pointed by  the  Crown.  In  recent  years  several  colonial 
judges  have  been  added  to  the  tribunal,  thus  bringing  it  in 
closer  touch  with  the  vast  empire  for  which  it  administers 
justice.  Its  jurisdiction  includes  colonial,  Indian  and  eccle- 
siastical appeals,  petitions  for  the  prolongation  of  letters 
patent,  and  matters  specially  referred  to  it  by  the  Crown. 
The  tribunal  was  dominated  for  many  years  by  the  vast 
learning  and  powerful  intellect  of  Lord  Watson,  who  sat 
in  this  court  for  a  longer  period  than  any  permanent  member, 
except  Lord  Kingsdown,  by  whom  alone  Watson's  substantial 
contributions  to  imperial  law  are  equalled. 

The  variety,  novelty  and  importance  of  the  questions  com- 
ing before  this  tribunal  lend  to  it  an  interest  which  tran- 
scends the  merits  of  individual  controversies.  The  cases 
specially  referred  to  it  by  the  Crown  often  involve  questions 
of  fundamental  importance;  and,  apart  from  the  recognized 
right  of  appeal  from  the  colonies,  the  Privy  Council  may 
give  special  leave  to  appeal  in  cases  of  general  or  constitu- 
tional importance,  or  in  criminal  cases  where  grave  injustice 
may  have  been  done.1  Moreover,  there  is  hardly  any  system 
of  civilized  law  which  does  not  prevail  in  some  parts  of  the 
vast  empire  subject  to  the  jurisdiction  of  this  court,  —  in 
the  West  Indies  the  civil  law  of  Spain,  in  Canada  the  civil 
law  of  France,  in  Africa  the  Roman  law  as  modified  by  the 
Dutch,  in  India  the  laws  of  the  Hindoo  and  the  Mohammedan. 
Therefore,  whether  ultimately  incorporated  with  the  House  of 
Lords  to  form  a  single  court  of  appeal  for  the  whole  empire, 
or  exercised  as  heretofore  in  an  independent  tribunal,  this 
great  imperial  jurisdiction,  sustaining  diverse  customs  and 
principles  of  conduct  which  have  been  stamped  with  the  ap- 
proval of  generations,  is  a  matter  of  vast  moral  as  well  as 
legal  significance.  It  is  an  effort  to  heed  the  cry  of  human- 
ity for  justice  and  peace  among  men. 

*Re  Skinner,  3  P.  C.  451;  Prince  v.  Gagnon,   8    App.    Cas.    102;    Re 
Dillet,  12  App.  Cas.  459;  Levien  v.  Reg.,  1  P.  C.  536. 


21.    AN   AMERICAN   LAW   STUDENT   OF  A 
HUNDRED    YEARS    AGO1 

BY  JAMES  KENT2 

NEW  YORK,  October  6th,  1828. 

DEAR  SIR :  — Your  very  kindly  &  friendly  letter  of  the 
15th  ult.  was  duly  received,  and  also  your  argument 
in  the  Case  of  Ivey  -vs.  Pinson.  I  have  read  the  Pamphlet 
with  much  interest  &  pleasure.  It  is  composed  with  mas- 
terly ability,  of  this  there  can  be  no  doubt,  &  without  pre- 
suming to  give  any  opinion  on  a  great  case,  still  Sub  Judice, 
&  only  argued  before  me  on  one  side,  I  beg  leave  to  express 
my  highest  respect  for  the  law  reasoning  &  doctrine  of  the 
argument,  &  my  admiration  of  the  spirit,  &  eloquence  which 
animate  it.  My  attention  was  very  much  fixed  on  the  peru- 
sal, &  if  there  be  any  lawyer  in  this  State  who  can  write  a 
better  argument  in  any  point  of  view  I  have  not  the  honor 
of  his  acquaintance. 

As  to  the  rest  of  your  letter  concerning  my  life  &  studies, 
I  hardly  know  what  to  say,  or  to  do.  Your  letter  &  argu- 
ment, &  character  &  name  have  impressed  me  so  favorably, 
that  I  feel  every  disposition  to  oblige  you,  if  it  be  not  too 
much  at  my  own  expense.  My  attainments  are  of  too 
ordinary  a  character,  &  far  too  limited,  justly  to  provoke 
such  curiosity.  I  have  had  nothing  more  to  aid  me  in  all 

1 A  letter  to  a  correspondent  in  Tennessee,  printed  in  the  Green  Bag 
(Boston:  Boston  Book  Co.),  1897,  volume  IX,  pp.  206-211,  with  the  fol- 
lowing note:  "This  letter  was  recently  found  in  the  old  Capitol  at 
Jackson,  Miss.  There  is  no  record  showing  how  it  got  there.  The 
Thomas  Washington  to  whom  it  was  addressed  was  a  lawyer  of  some 
note  who  lived  at  Nashville,  Tenn." 

'1763-1847.  Judge  of  the  Supreme  Court  of  New  York,  1798;  chief 
justice  of  the  same  Court,  1804-1814;  chancellor  of  New  York,  1814- 
1823.  Further  biographical  and  bibliographical  data  appear  in  the 
letter. 

837 


838  V.    BENCH   AND   BAR 

my  life  than  plain  method,  prudence,  temperance  &  steady 
persevering  diligence.  My  diligence  was  more  remarkable 
for  being  steady  &  uniform,  than  for  the  degree  of  it,  which 
never  was  excessive,  so  as  to  impair  my  health  or  eyes,  or 
prevent  all  kinds  of  innocent  &  lively  recreation.  I  would 
now  venture  to  state  briefly  but  very  frankly  &  at  your 
special  desire,  somewhat  of  the  course  &  progress  of  my 
studious  life.  I  know  you  cannot  but  smile  at  times  at  my 
simplicity,  but  I  commit  myself  to  your  indulgence  &  honor. 
I  was  educated  at  Yale  College  &  graduated  in  1781.  I 
stood  as  well  as  any  in  my  class,  but  the  test  of  scholarship 
at  that  day  was  contemptible.  I  was  only  a  very  inferior 
classical  scholar,  &  we  were  not  required,  &  to  this  day  I 
have  never  looked  into  a  Greek  book  but  the  New  Testament. 
My  favorite  studies  were  Geography,  History,  Poetry, 
bellesletter,  &c.  When  the  College  was  broken  up  &  dis- 
persed in  July  1779  by  the  British,  I  retired  to  a  country 
village  &  finding  Blackstone's  com.  I  read  the  4th  volume, 
parts  of  the  work  struck  my  taste,  &  the  work  inspired  me 
at  the  age  of  16  with  awe,  and  I  fondly  determined  to  be  a 
lawyer.  In  November  1781  I  was  placed  by  my  father  with 
Mr.  (now  called  Judge)  Benson,  who  was  then  attorney 
general  at  Poughkeepsie  on  the  banks  of  the  Hudson,  -&  in 
my  native  County  of  Dutchess.  There  I  entered  on  law,  & 
was  the  most  modest,  steady,  industrious  student  that  such 
a  place  ever  saw.  I  read  the  following  winter  Grotius  cy 
Puffendorf  in  huge  folios,  &  made  copious  extracts.  My 
fellow  students  who  were  more  gay  and  gallant,  thought  me 
very  odd  and  dull  in  my  taste,  but  out  of  five  of  them  four 
died  in  middle  life  drunkards.  I  was  free  from  all  dissipa- 
tion, and  chaste  as  pure  virgin  snow.  I  had  never  danced, 
or  played  cards,  or  sported  with  a  gun,  or  drank  anything 
but  water.  In  1782  I  read  Smollets  history  of  England,  & 
procured  at  a  farmers  house  where  I  boarded,  Rapins  His- 
tory (a  huge  folio)  and  read  it  through;  and  I  found  dur- 
ing the  course  of  the  last  summer  among  my  papers,  my  M.  S. 
abridgment  on  Rapins  dissertation  on  the  laws  and  customs 
of  the  Anglo  Saxons.  I  abridged  Hales  history  of  the  com- 
mon law,  and  the  old  books  of  practice,  and  read  parts  of 


21.     KENT:  AN  AMERICAN  LAW  STUDENT  839 

Blackstone  again  &  again.  The  same  year  I  procured 
Humes  History  and  his  profound  reflections  &  admirable 
eloquence  struck  most  deeply  on  my  youthful  mind.  I  ex- 
tracted the  most  admired  parts  and  made  several  volumes 
of  M.  S.  S.  I  was  admitted  to  the  bar  of  the  Supr.  Court 
in  January  1785,  at  the  age  of  21,  and  then  married  without 
one  cent  of  property;  for  my  education  exhausted  all  m'y 
kind  father's  resources  and  left  me  in  debt  $400.00,  which 
took  me  two  or  three  years  to  discharge.  Why  did  I  marry? 
I  answer  that. 

At  the  farmers  house  where  I  boarded,  one  of  his 
daughters,  a  little  modest,  lovely  girl  of  14  generally  caught 
my  attention  &  insensibly  stole  upon  my  affections,  &  I  be- 
fore I  thought  of  love  or  knew  what  it  was,  I  was  most 
violently  affected.  I  was  21.  and  my  wife  16  when  we  mar- 
ried, $•  that  charming  lovely  girl  has  been  the  idol 
<§•  solace  of  my  life,  &  is  now  with  me  in  my  office,  uncon- 
scious that  I  am  writing  this  concerning  her.  We  have 
both  had  uniform  health  &  the  most  perfect  &  unalloyed 
domestic  happiness,  &  are  both  as  well  now  &  in  as  good 
spirits  as  when  we  married.  We  have  three  adult  children. 
My  son  lives  with  me  and  is  26,  &  a  lawyer,  &  of  excellent 
sense,  &  discretion,  &  of  the  purest  morals.  My  eldest 
daughter  is  well  married,  &  lives  the  next  door  to  me,  with 
the  intimacy  of  our  family,  my  youngest  daughter  is  now 
of  age,  she  lives  with  me,  &  is  my  little  idol. 

I  went  to  housekeeping  at  Poughkeepsie,  1786,  in  a  small, 
snug  cottage,  &  there  I  lived  in  charming  simplicity  for 
eight  years.  My  practice  was  just  about  sufficient  to  redeem 
me  from  debt,  &  to  maintain  my  wife  &  establishment  de- 
cently, and  supply  me  with  books  about  as  fast  as  I  could 
.read  them.  I  had  neglected  &  almost  entirely  forgotten  my 
scanty  knowledge  of  the  Greek  &  Roman  classics,  &  an 
accident  turned  my  attention  to  them  very  suddenly.  At 
the  June  Circuit  in  1786,  I  saw  Ed.  Livingstone1  (now  the 
codifier  for  Louisiana)  &  he  had  a  pocket  Horace  &  read 
some  passages  to  me  at  some  office  &  pointed  out  their  beau- 

1  For  the  work  of  Edward  Livingstone  in  American  law,  see  Essay- 
No.  15,  ante  (Dillon:  Bentham's  Influence  in  the  Reforms,  etc.).  —  EDS. 


840  V.    BENCH   AND   BAR 

ties,  assuming  that  I  well  understood  Horace.  I  said  noth- 
ing, but  was  stung  with  shame  &  mortification,  for  I  had 
forgotten  even  my  Greek  letters.  I  purchased  immediately 
Horace  and  Virgil,  a  dictionary  &  grammar,  and  a  Greek 
Lexicon  &  grammar  and  the  testament,  &  formed  my  reso- 
lution promptly  and  decidedly  to  recover  the  lost  languages. 
'  I  studied  in  my  little  cottage  mornings  and  devoted  an 
hour  to  greek  and  another  to  latin  daily,  I  soon  increased 
it  to  two  for  each  tonge  in  the  24  hours,  my  acquaintance 
with  the  languages  increased  rapidly.  After  I  had  read 
Horace  and  Virgil  I  ventured  upon  Livy  for  the  first  time 
in  my  life,  &  after  I  had  completed  the  Greek  Testament 
I  took  up  the  Iliad,  &  I  can  hardly  describe  at  this  day  * 
with  which  I  progressively  read  and  studied  in  the  original 
Livy  &  the  Iliad.  It  gave  me  inspiration,  I  purchased  a 
French  Dictionary  &  grammar  &  began  French  &  gave  an 
hour  to  this  language  daily.  I  appropriated  the  business 
part  of  the  day  to  law,  &  read  Co.  Litt,  &  made  copious 
notes.  I  devoted  evening  to  English  literature  in  company 
with  my  wife.  From  1788  to  1798  I  steadily  divided  the 
day  into  five  portions,  &  alotted  them  to  Greek,  Latin,  law 
and  business,  French  <§•  English.  I  mastered  the  best  of  the 
Greek,  Latin  and  French  classics,  &  as  well  as  the  best  Eng- 
lish &  law  books  at  hand  &  read  Machiavel  &  all  collateral 
branches  .of  English  history,  such  as  Libeletines  H.  2nd 
Bacons  H.  7th.  Lord  Clarendon  on  the  great  Rebellion,  &c. 
I  even  sent  to  England  as  early  as  1790  for  Warbertons 
divine  legation  Lusiad. 

My  library  which  started  from  nothing  grew  with  my 
growth,  &  it  has  now  attained  to  upwards  of  3,000  volumes, 
&  it  is  pretty  well  selected,  for  there;  is  scarcely  a  work, 
authority  or  document  referred  to  in  the  3  volumes  of 
my  commentaries  but  what  has  a  place  in  my  own  library, 
next  to  my  wife,  my  library  has  been  the  solace  of  my  great- 
est pleasure  &  devoted  attachment. 

The  year  1793  was  another  era  in  my  life,  I  removed  from 
Poughkeepsie  to  the  city  of  New  York,  with  which  I  had 
become  well  acquainted,  &  I  wanted  to  get  rid  of  the  incum- 
1  Words  omitted  in  original. 


VI.     KENT:  AN  AMERICAN  LAW  STUDENT  841 

brance  of  a  dull  law  partner  at  P,  but  though  I  had  been 
in  practice  nine  years,  I  had  acquired  very  little  property. 
My  furniture  &  library  were  very  scanty,  &  I  had  not 
$500  extra  in  the  world.  But  I  owed  nothing,  &  came  to  the 
City  with  good  character  &  with  a  scolar's  reputation.  My 
newspaper  writings,  &  speeches  in  the  assembly  had  given 
me  some  notoriety.  I  do  not  believe  any  human  being  ever 
lived  with  more  pure  and  perfect  domestic  repose  &  sim- 
plicity &  happiness  than  I  did  for  those  nine  years. 

I  was  appointed  professor  of  law  in  Columbia  College  late 
in  1793  &  this  drove  me  to  deeper  legal  researches.  I  read 
that  year  in  the  original  Bynkersheek  Quinctillion  &  Ciceros 
rhetorical  works,  besides  reports  and  digests,  &  began  the 
compilation  of  law  lectures.  I  read  a  course  in  1794  &  5  to 
about  40  gentlemen  of  the  first  rank  in  the  City.  They  were 
very  well  received,  but  I  have  long  since  discovered  them  to 
have  been  slight  &  trashy  productions.  I  wanted  Judicial 
labors  to  teach  me  precision.  I  dropped  the  course  after 
one  term,  &  soon  became  considerably  involved  in  business, 
but  was  never  fond  of,  nor  much  distinguished  in  the  con- 
tentions of  the  bar. 

I  had  commenced  in  1786  to  be  a  zealous  Federalist  & 
read  everything  on  politics.  I  got  the  Federalist  almost  by 
heart,  and  became  intimate  with  Hamilton.  I  entered  with 
ardor  into  the  federal  politics  against  France  in  1793,  &  my 
hostility  to  the  French  democracy,  &  to  French  power  beat 
with  strong  pulsation  down  to  the  battle  of  Waterloo,  now 
you  know  my  politics. 

I  had  excellent  health  owing  to  the  love  of  simple  diet,  & 
to  all  kinds  of  temperance,  &  never  read  late  nights.  I 
rambled  daily  with  my  wife  on  foot  over  the  hills,  we  were 
never  asunder.  In  1795  we  made  a  vo}rage  through  the 
lakes  George  &  Champlain.  In  1797  we  run  over  the  4 
New  England  States.  As  I  was  born  and  nourished  in  boy- 
ish days  among  the  highlands  East  of  the  Hudson,  I  have 
always  loved  rural  &  wild  scenery,  &  the  sight  of  mountains 
&  hills,  &  woods  &  streams  always  enchanted  me,  and  do  still. 
This  is  owing  in  part  to  early  associations,  &  it  is  one  secret 
of  my  uniform  health  &  chirfulness. 


842  V.    BENCH   AND   BAR 

In  1796  I  began  my  career  of  official  life.  It  came  upon 
me  entirely  unsolicited  &  unexpected.  In  Feby  1796  Gov- 
ernor Jay  wrote  me  a  letter  stating  that  the  office  of  Master 
in  Chancery  was  vacant,  &  wished  to  know  confidentially 
whether  I  would  accept.  I  wrote  a  very  respectful  but  very 
laconic  answer.  It  was  "  That  I  was  content  to  accept  of 
the  office  if  appointed."  The  same  day  I  received  the  ap- 
pointment, &  was  astonished  to  learn  that  there  were  16  pro- 
fessed applicants  all  disappointed.  This  office  gave  me  the 
monopoly  of  the  business  of  that  office,  for  there  was  but 
one  other  master  in  N  York.  The  office  kept  me  very  busy 
in  petty  details  and  outdoor  concerns,  but  was  profitable. 
In  March  1797  I  was  appointed  Recorder  of  N.  York.  This 
was  done  at  Albany,  &  without  my  knowledge  that  the  office 
was  even  vacant  or  expected  to  be.  The  first  I  heard  of  it 
was  the  appointed  announced  in  the  papers.  This  was  very 
gratifying  to  me,  because  it  was  a  judicial  office.  I  thought 
that  it  would  relieve  me  from  the  drudgery  of  practice  & 
gave  me  a  way  of  displaying  what  I  knew ;  &  of  being  useful 
entirely  to  my  taste.  I  pursued  my  studies  with  increased 
appetite  &  enlarged  my  law  library  very  much.  But  I  was 
encumbered  with  office  business,  for  the  governor  allowed  me 
to  retain  the  other  office  also,  &  with  these  joint  duties  & 
counsel  business  in  the  Sup.  Court,  I  made  a  great  deal  of 
money  that  year.  In  Feby  1798  I  was  offered  by  Gov  Jay 
&  accepted  the  office  of  youngest  Judge  of  the  Supreme 
Court.  This  was  the  summit  of  my  ambition.  My  object 
was  to  return  back  to  Poughkeepsie,  &  resume  *my  studies, 
&  ride  the  circuits,  &  inhale  country  air,  &  enjoy  otium  cum 
dignitate.  I  never  dreamed  of  volumes  of  reports  &  written 
opinions.  Such  things  were  not  then  thought  of.  I  retired 
back  to  P  in  the  Spring  of  1798  &  in  that  Summer  rode  all 
over  the  Western  wilderness  &  was  delighted.  I  returned 
home  and  began  my  Greek  &  Latin,  &  French,  &  English, 
&  law  classics  as  formerly,  &  made  wonderful  progress  in 
books  that  year. 

In  1799  I  was  obliged  to  remove  to  Albany,  in  that  I 
might  not  be  too  much  from  home,  $  there  I  remained 
stationary  for  $4  years.  When  I  came  to  the  bench  there 


$1.     KENT:  AN  AMERICAN  LAW  STUDENT  843 

(*)  no  reports  or  State  precedents.  The  opinions  from  the 
bench  were  delivered  ore  tenus.  We  had  no  law  of  our  own, 
&  nobody  knew  what  it  was.  I  first  introduced  a  thorough 
examination  of  cases  &  written  opinions.  In  Jany  T  1799 
the  2d  case  reported  in  1st  Johnsons  cases,  of  Ludlow  vs. 
Dale2  is  a  sample  of  the  earliest.  The  judges  when  we  met 
all  assumed  that  foreign  sentences  were  only  good  prime 
facie.  I  presented  and  read  my  written  opinion  that  they 
were  conclusive  &  they  all  gave  up  to  me  &  so  I  read  it  in 
court  as  it  stands.3  This  was  the  commencement  of  a  new 
plan,  &  then  was  laid  the  first  stone  in  the  subsequently 
erected  temple  of  our  jurisprudence. 

Between  that  time  &  1804  I  rode  my  share  of  circuits, 
attended  all  the  terms,  &  was  never  absent,  &  was  always 
ready  in  every  case  by  the  day.  I  read  in  that  time  (4)  and 
completely  abridged  the  latter,  &  made  copious  digests  of 
all  the  English  new  reports  and  treatises  as  they  came  out. 
I  made  much  use  of  the  Corpus  Juris,  &  as  the  Judges  (Liv- 
ingston excepted)  knew  nothing  of  French  or  civil  law  I 
had  immense  advantage  over  them.  I  could  generally  put 
my  Brethern  to  rout  &  carry  my  point  by  mysterious  want 
of  French  and  civil  law.  The  Judges  were  republicans  & 
very  kindly  disposed  to  everything  that  was  French,  & 
this  enabled  me  without  exciting  any  alarm  or  jealousy,  to 
make  free  use  of  such  authorities  &  thereby  enrich  our  com- 
mercial law. 

I  gradually  acquired  preponderating  influence  with  my 
brethern,  &  the  volumes  in  Johnson  after  I  became  Ch.  J 
in  1804  show  it.  The  first  practice  was  for  each  judge  to 
give  his  portion  of  opinions  when  we  all  agreed,  but  that 
gradually  fell  off,  but  for  the  two  or  three  last  years  before 
I  left  the  bench,  I  gave  the  most  of  them.  I  remember  that 
in  8th  Johnson  all  the  opinions  one  Term  are  per  curiam. 
The  fact  is  I  wrote  them  all,  &  proposed  that  course  to  avoid 

1  Words  omitted  in  the  original. 

*  Probably  January,  1806,  1st  Case  in  1  John.     Ludlow  r.  Bowne. 

8  For  a  note  indicating  an  error  of  memory  in  Chancellor  Kent's 
allusion  to  the  tenor  of  this  decision,  see  Professor  Schofleld's  article  In 
1  Illinois  Law  Rev.  p.  257.  —  EDS. 

'  Blank  in  the  original. 


844  V.     BENCH    AND    BAR 

existing  jealousy  &  many  a  per  curiam  opinion  was  so  in- 
serted for  that  reason. 

Many  of  the  cases  decided  during  the  16  years  I  was  in 
the  Supr.  Court  were  labored  by  me  most  unmercifully,  but 
it  was  necessary  under  the  circumstances  in  order  to  subdue 
opposition.  We  had  but  few  American  precedents.  One 
judge  was  democratic,  and  my  brother  Spencer  particularly 
of  a  bold,  vigorous,  dogmatic  mind,  &  overbearing  manner. 
English  authorities  did  not  stand  very  high  in  those  feverish 
times,  &  this  led  me  a  hundred  times  to  attempt  to  bear  down 
opposition,  or  flame  it  by  exhausting  research  &  overwhelm- 
ing authority.  Our  Jurisprudence  was  probably  on  the 
whole  improved  by  it.  My  mind  certainly  was  roused,  & 
was  always  kept  ardent  and  inflamed  by  collision. 

In  1814  I  was  appointed  Chancellor.  The  office  I  took 
with  considerable  reluctance.  It  had  no  claims.  The  person 
who  left  it  was  stupid,  &  it  is  a  curious  fact  that  for  the  nine 
years  I  was  in  that  office,  there  was  not  a  single  decision, 
opinion  or  dictum  of  either  of  my 'two  predecessors  (Ch. 
Livingston  Sf  Ch.  (*)  )  from  1777  to  1814  cited  to  me  or 
even  suggested.  I  took  the  court  as  if  it  had  been  a  new 
institution,  &  never  before  known  to  the  U.  S.  I  had  noth- 
ing to  guide  me,  &  was  left  at  liberty  to  assume  all  such 
English  chancery  powers  and  jurisdiction  as  I  thought 
applicable  under  our  constitution.  This  gave  me  great 
scope,  &  I  was  only  checked  by  the  revision  of  the  Senate 
&  court  of  Errors.  I  opened. the  gates  of  the  court  imme- 
diately, &  admitted  almost  gratuitously  the  first  year  85 
counsellors,  though  I  found  there  had  not  been  but  13  ad- 
mitted for  13  years  before.  Business  flowed  in  with  a  rapid 
tide.  The  result  appears  in  the  seven  volumes  of  Johnson's 
Ch.  reports. 

My  study  in  Equity  jurisprudence  was  very  much  con- 
fined to  the  topics  elicited  by  the  cases.  I  had  previously 
read,  of  course,  the  modern  Equity  reports,  down  to  the 
time,  &  of  course  I  read  all  the  new  ones  as  fast  as  I  could 
procure  them.  I  remember  reading  Pear  Williams  as  early 
as  1792  and  made  a  digest  of  the  leading  doctrines.  The 

1  Blank  in  original. 


21.     KENT:  AN  AMERICAN  LAW  STUDENT  845 

business  of  the  court  of  chancery  oppressed  me  very  much, 
but  I  took  my  daily  exercise,  &  my  delightful  country  rides 
among  the  Catskill  or  the  Vermont  mountains  with  my  wife, 
&  kept  up  my  health  and  spirits.  I  always  took  up  the  cases 
in  their  order,  &  never  left  one  until  I  had  finished  it.  This 
was  only  doing  one  thing  at  a  time.  My  practice  was  first 
to  make  myself  perfectly  &  accurately  (mathematically 
accurately)  master  of  the  facts.  It  was  done  by  abridging 
the  bill,  &  then  the  answers,  &  then  the  depositions,  &  by 
the  time  I  had  done  this  slow  tedious  process  I  was  master 
of  the  cause  &  ready  to  decide  it.  I  saw  where  justice  lay 
and  the  moral  sense  decided  the  cause  half  the  time,  &  I 
then  sed  down  to  search  the  authorities  until  I  had  exhausted 
my  books,  &  I  might  once  &  a  while  be  embarrassed  by 
a  technical  rule,  but  I  most  always  found  principles  suited 
to  my  views  of  the  case,  &  my  object  was  to  discuss  a  point 
(*)  as  never  to  be  teazed  with  it  again,  &  to  anticipate  an 
angry  &  vexatious  appeal  to  a  popular  tribune  by  disap- 
pointed counsel. 

During  those  years  at  Albany,  I  read  a  great  deal  of 
English  literature,  but  not  with  the  discipline  of  my  former 
division  of  time.  The  avocations  of  business  would  not 
permit  it.  I  had  dropped  the  Greek  as  it  hurt  my  eyes.  I 
persevered  in  Latin,  &  used  to  read  Virgil,  Horace,  Juvenal, 
Lucan,  Salust,  Tacitus,  &c  &  Ciceros  offices,  &  some  of  them 
annually.  I  have  read  Juvenal,  Horace  &  Virgil  eight  or  ten 
times.  I  read  a  great  deal  in  Pothiers  works  and  always 
consulted  him  when  applicable.  I  read  the  Ed  &  Q  reviews 
&  Annl  register  ab  initio  &  thoroughly,  &  voyages  &  travels 
&  the  Waverley  novels  &c,  as  other  folks  did.  I  have  always 
been  excessively  fond  of  voyages  and  travels. 

In  1823  a  solemn  era  in  my  life  arrived.  I  retired  from 
the  office  at  the  age  of  60,  &  then  immediately  with  my  son 
visited  the  Eastern  States.  On  my  return  the  solitude  of  my 
private  office  &  the  new  dinasty  did  not  please  me.  I  be- 
sides would  want  income  to  live  as  I  had  been  accustomed. 
My  eldest  daughter  was  permanently  settled  in  N  York,  & 
I  resolved  to  move  away  from  Albany,  &  I  ventured  to  come 

111  So"  omitted. 


846  V.     BENCH   AND    BAR 

down  to  N.  Y.  &  be  Chamber  Counsel,  &  the  trustees  of 
Columbia  College  immediately  tendered  me  again  the  old  of- 
fice of  professor  which  had  been  dormant  from  1795.  It  had 
no  salary,  but  I  must  do  something  for  a  living,  &  I  under- 
took (but  exceedingly  against  my  inclination)  to  write  & 
deliver  law  lectures.  In  the  two  characters  of  Chamber  Coun- 
sellor and  College  lecturer,  I  succeeded  by  steady  persever- 
ance beyond  my  most  sanguine  expectations,  &  upon  the  whole 
the  five  years  I  have  lived  here  in  this  City  since  1823  have 
been  happy  &  prosperous,  &  I  live  aside  of  my  daughter,  & 
I  take  excursions  every  Summer  with  my  wife  &  daughter  all 
over  the  country.  I  have  been  twice  with  he  (*)  Canada  & 
in  every  direction.  I  never  had  better  health.  I  walk  the 
battery  uniformly  before  breakfast.  I  give  a  great  many 
written  opinions,  &  having  got  heartily  tired  of  lecturing  1 
abandoned  it,  &  it  was  my  son  that  pressed  me  to  prepare  a 
volume  of  lectures  for  the  press.  I  had  no  idea  of  publishing 
them  when  I  delivered  them.  I  wrote  over  one  volume  &  pub- 
lished it  as  you  know.  This  led  me  to  remodel  &  enlarge,  & 
now  the  3rd  volume  will  be  out  in  a  few  days,  &  I  am  obliged 
to  write  a  Jf.th  to  complete  my  law. 

My  reading  now  is  as  you  may  well  suppose,  quite  desul- 
tory, but  still  I  read  with  as  much  zeal  and  pleasure  as  ever, 
I  was  never  more  engaged  in  my  life  than  during  the  last 
Summer.  I  accepted  the  trust  of  receiver  to  the  Franklin 
(insolvent)  Bank,  &  it  has  occupied,  &  perplexed,  &  vexed  me 
daily,  &  I  had  to  write  part  of  the  3rd  volume,  &  search 
books  a  good  deal  for  that  very  object,  and  I  have  revised  the 
proof  sheet. 

If  I  had  a  convenient  opportunity  (though  I  do  not  see 
how  I  can  have  one)  I  would  send  the  3rd  volume  out  to  you, 
&  another  to  our  excellent  friend,  Governor  Carroll,  to  whom 
I  beg  you  will  be  so  good  as  to  present  my  best  respects  & 
the  expression  of  my  great  esteem. 

Your  suggestion  of  an  Equity  treatise  contains  a  noble 
outline  of  a  great  &  useful  work,  but  I  cannot  &  will  not 
enter  on  such  a  task  I  have  much  more  to  lose  than  to  gain 
&  I  am  quite  tired  of  Equity  law.  I  have  done  my  part,  & 

1  So  in  original. 


21.     KENT:  AN  AMERICAN  LAW  STUDENT  847 

choose  to  live  more  at  my  ease,  &  to  be  prepared  for  the  ap- 
proaching infirmities  of  age.  —  On  reviewing  what  I  have 
written,  I  had  thoughts  of  burning  it,  I  speak  of  myself  too 
entirely,  &  it  is  entirely  against  my  habit  or  taste,  but  I  see 
no  other  way  fairly  to  meet  your  desires. 

I  am  with  great  respect  and  good  wishes, 

JAMES  KENT. 

Thomas  Washington,  Esq. 


000  705  021 


